[2013] KEHC 5684 (KLR)
The court held that the composition and ranking of party lists for county assembly nominations is an internal party matter, and the Respondent (IEBC) is only required to ensure that the submitted lists comply with constitutional and statutory requirements. There was no evidence that the Respondent acted contrary to...
Source-derived case information.
- Citation
- [2013] KEHC 5684 (KLR)
- Parties
- Applicant: Hildabeda Khayele Lukulu; Applicant: Thadayo Masibo Wadoya; Respondent: The Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 313 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Party List Nominations, County Assembly Seats, Electoral Disputes, Constitutional Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hildabeda Khayele Lukulu
Applicant
Thadayo Masibo Wadoya
Applicant
The Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the Respondent's published list of nominees to the Bungoma County Assembly violated Articles 10, 90 and 177 of the Constitution.
- 2 Whether the Respondent was bound to adhere to the original list of nominees confirmed by the Orange Democratic Movement (ODM) on 25th March, 2013.
- 3 Whether the composition and ranking of party lists is an internal party matter or subject to external review.
Ratio Decidendi
The court held that the composition and ranking of party lists for county assembly nominations is an internal party matter, and the Respondent (IEBC) is only required to ensure that the submitted lists comply with constitutional and statutory requirements. There was no evidence that the Respondent acted contrary to the list submitted by ODM. Furthermore, granting the declarations sought would adversely affect individuals who were not parties to the petition, violating principles of natural justice. Consequently, the petition lacked merit and was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. 313 OF 2013
HILDABEDA KHAYELE LUKULU............................ 1ST PETITIONER
THADAYO MASIBO WADOYA ..............................2ND PETITIONER
VERSUS
THE INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION............................RESPONDENT
JUDGMENT
The Respondent, the Independent Electoral and Boundaries Commission, set up a Committee known as the Disputes Resolution Committee (the Committee) to deal with disputes arising from nominations made by political parties to county assemblies in respect of the seats contemplated by Article 177(1) (b) and (c) of the Constitution. Hildabeda Khayele Lukulu, the 1st Petitioner, and Thadayo Masibo Wadoya, the 2nd Petitioner, were dissatisfied with their party’s nominations, to Bungoma County Assembly, in respect of the said seats. They filed complaints before the Respondent’s Committee. The 1st Petitioner filed Complaint No. IEBC/NDRC/ PL/234/2013-HILDABEDA LIKULU v ODM and the 2nd Petitioner’s Complaint was No. IEBC/NDRC/ PL/107/2013- THADAYO WADOYA v ODM. The Committee answered the 1st Petitioner thus: “Benedetta Harsa is hereby removed from the ODM gender–top up list as both party and various complainants have adduced sufficient evidence to prove that she is not known to the parties. She is replaced by Ruth Mwenya who was following her in the gender top-up list in the ODM Bungoma original list submitted by the party.”The 2nd Petitioner, had alleged before the Committee that a nominee by the name Sammy Chemweji was not a youth nor disabled and hailed from a different county and was thus not eligible to be nominated by the party. The Committee dismissed the matter on the ground that the 2nd Petitioner had not adduced sufficient evidence to prove his allegations.
Before us, the petitioners through the Petition dated 19th June, 2013 seek, among other prayers the following orders:-
That a declaration do issue that the Respondent’s list of nominees to the Bungoma County Assembly as published in its website violated Articles 10, 90 and 177 of the Constitution; and
That a mandatory injunction do issue compelling the Respondent to adhere to the original list of nominees of members of the Bungoma County Assembly as confirmed by the Orange Democratic Movement (ODM) on 25th March, 2013.
The Respondent opposed the Petition through an affidavit sworn on 4th July, 2013 by its Legal Officer, Mr. Moses Kipkogei. On the issues raised by the 1st Petitioner, the Respondent’s reply is that it relied on the list submitted to it by ODM and in that list Ruth Mwenya had priority on the gender top up list as opposed to the Petitioner. As to the 2nd Petitioner’s case, the Respondent averred that the 2nd Petitioner did not adduce any evidence to support his claim that Sammy Chemwenji was not eligible for nomination.
We have considered the material placed before us and find that:
(a) The composition of party lists and the ranking of the party members in such lists is an internal matter for the party. Once a list is submitted to the Respondent, the same can only be rejected for failing to comply with the Constitution and/or statute. There is no evidence that the Respondent did not act in accordance with the list submitted to it by ODM.
(b) If the declarations sought by the petitioners are granted, they will adversely affect persons who have not been made parties to this petition.
For the reasons aforesaid, we find that this petition has no merit. It is dismissed with no order as to costs.
Dated, signed and delivered at Nairobi this 12th day of July, 2013
MUMBI NGUGI, D. S. MAJANJA, W. K. KORIR,
JUDGE JUDGE JUDGE