[2013] KEHC 5167 (KLR)
The court found that while the applicant was the winner of the party nomination and was duly forwarded by the party as its candidate, the proceedings that led the IEBC to reverse that decision were not before the court. The court emphasized its limited jurisdiction over IEBC decisions, which extends only to...
Source-derived case information.
- Citation
- [2013] KEHC 5167 (KLR)
- Parties
- Applicant: Jacqueline Nziva Munyao; Respondent: The Independent Electoral and Boundaries Commission (IEBC); Respondent: The Secretary General, Wiper Democratic Movement - Kenya; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 103 of 2013
- Procedural Posture
- Constitutional Petition / Ruling on Notice of Motion for Judicial Review
- Outcome
- Application declined; matter referred back to IEBC for reconsideration.
- Judges
- DO Ogembo
- Legal Topics
- Electoral Nominations, Procedural Fairness, Judicial Review, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacqueline Nziva Munyao
Applicant
The Independent Electoral and Boundaries Commission (IEBC)
Respondent
The Secretary General, Wiper Democratic Movement - Kenya
Respondent
__MISSING__
Respondent
Procedural Posture
Constitutional Petition / Ruling on Notice of Motion for Judicial Review
Legal Issues
- 1 Whether the IEBC's decision to confirm the 3rd Respondent as the duly nominated aspirant was procedurally fair.
- 2 Whether the court has jurisdiction to intervene in IEBC's decisions regarding party nominations.
- 3 Whether the 3rd Respondent's right to be heard was violated by not being served with the application.
Ratio Decidendi
The court found that while the applicant was the winner of the party nomination and was duly forwarded by the party as its candidate, the proceedings that led the IEBC to reverse that decision were not before the court. The court emphasized its limited jurisdiction over IEBC decisions, which extends only to procedural justice and not to the merits of the nomination. Furthermore, the application had not been served on the 3rd Respondent, who had acquired a right by virtue of the IEBC's decision and could not be deprived of that right without being heard. Consequently, the court declined to interfere with the IEBC's decision but directed the IEBC to reconsider the matter in light of the...
Court Disposition
Application declined; matter referred back to IEBC for reconsideration.
Orders
- IEBC is directed to have a second look into the matter in light of the evidence and the record sent by the 2nd Respondent.
- No adverse orders made against the 3rd Respondent due to lack of service.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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JACQUELINE NZIVA MUNYAO..................................................................................PETITIONER/APPLICANT
VERSUS
THE INDEPENDENT ELECTORALAND BOUNDARIES COMMISSION (IEBC)................1ST RESPONDENT
THE SECRETARY GENERAL, WIPERDEMOCRATIC MOVEMENT - KENYA....................2ND RESPONDENT
R U L I N G
1. By a Notice of Motionapplication dated 12th February 2013 and filed in court on 13th February 2013 the Applicant seeks orders of Judicial Review to revoke the Certificate of nomination issued by the 1st Respondent to the 3rd Respondent and that the 1st Respondent be stopped from accepting the nomination of the 3rd Respondent and to remove the 3rd Respondent’s name from the ballot paper.
2. The Applicant alleges that she was declared the nominee by the 2nd Respondent pursuant to nomination exercise carried out on 17th January 2013 wherein she garnered 2,142 votes against the 3rd Respondent’s 1,835 votes.
3. For some reasons, however, the 3rd Respondent’s papers were accepted by the IEBC. However, the party stood with the Applicant as their candidate. For some unknown reason the 3rd Respondent lodged a complaint with IEBC pursuant to a complaint which is not clear from the records. The IEBC confirmed the 3rd Respondent as the duly nominated aspirant for the seat.
4. The Applicant avers that she was not invited to the IEBC hearing. The Applicant now wants that decision to be reversed.
5. I have considered the application and the opposing affidavits and submissions. It is clear that the Applicant was the winner of the nomination exercise that was carried out. It is clear also that the 2nd Respondent – WIPER PARTY, nominated the Applicant and forwarded the Applicant’s name for Ikombe Ward in Yatta Constituency. However, the proceedings which led the IEBC to reverse that decision are not within this court. Under Article 88 (4) (b) of the Constitution this court has limited jurisdiction over the IEBC and can only intervene on procedural justice but not on merit.
6. Again, the application before the court has not been served upon the 3rd Respondent. The 3rd Respondent, being the person whose name is with IEBC, has now acquired a right which cannot be taken away without giving the 3rd Respondent a chance to be heard. In this regard this court finds it difficult to interfere with the IEBC decision.
7. However, in light of the evidence on record, and for justice to be seen to be done, I order and direct the IEBC to have a second look into the matter in light of the foregoing and the record sent to the IEBC by the 2nd Respondent.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBITHIS 19TH DAY OF FEBRUARY 2013
E. K. O. OGOLA
JUDGE
PRESENT:
Ndeto for the Petitioner/Applicant
Nyamodi for the 1st Respondent
Ashioya H/B Uvyu for the 3rd Respondent
Teresia – Court Clerk