[2013] KECA 58 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: NAMBUYE, MWILU & OUKO, JJ.A.)

CIVIL APPEAL NO. 200 OF 2013

BETWEEN

JANE CHEPERENGER INGO ……………….............................................…. APPELLANT

AND

INDEPENDENT ELECTORAL &BOUNDARIES COMMISSION ….. 1ST RESPONDENT

UNITED REPUBLICAN PARTY …………………...........................… 2ND RESPONDENT

IRINE KIMUTAI CHESANG …………………............................…….. 3RD RESPONDENT

(Appeal from the Judgment of Majanja, Korir and Mumbi Ngugi JJ.given at Nairobi on 11th July 2013

in

JUDICIAL REVIEW CAUSE NO. 216 OF 2013)

********************

JUDGMENT OF THE COURT

The Court, in this appeal, has been asked to make a determination whether the High Court was in error in upholding the finding of the Independent Electoral and Boundaries Commission (IEBC) Nomination Dispute Resolution Committee’s decision declaring the 3rd respondent, Irene Chemutai Chesang instead of the appellant, Jane Cheperenger Ingo as the valid nominee for the United Republican Party (URP), the 2nd respondent, for the Bungoma County Assembly.

It was in evidence, before both the Committee and the High Court that on 13th January 2013 the officials of URP Bungoma County met and resolved to nominate the appellant as their representative to the County Assembly in terms of Article 177 (1) (b) of the Constitution. The appellant made a formal application for the seat, paid Kshs. 10,000/= nomination fees and was thereafter issued with an “Acknowledgment Certificate” to signify that she had complied with the requirement for nomination for the position of member of County Assembly. Subsequently, the appellant was issued with Party Membership Card Number 2791452. Likewise, it is common ground that the Registrar of Political Parties confirmed that the appellant was a registered URP member.

From the foregoing background, it came as a surprise to the appellant when the IEBC list of party nominees was published and her name was omitted and in her place the 3rd respondent was included. The appellant appeared before the Committee and pointed out the anomaly arguing that she was the validly nominated party representative to the County Assembly and that the 3rd respondent was not even a member of URP. She was once more astounded at the subsequent list which did not change the above position. She returned to the Committee and placed evidence before it that she was the duly nominated URP representative to the County Assembly; that the 3rd respondent, apart from not being a party member was an employee of the IEBC. She placed before the committee the party list prepared in accordance with the resolution of Bungoma County Party officials, in which her name was shown as number 1, the minutes of the meeting where the resolution was passed, a letter from the Director/Legal Counsel for the party asking the IEBC to remove the 3rd respondent's name from the published list and to replace it with that of the appellant, a letter from the Registrar of Political Parties confirming that the 3rd respondent was not a registered member of any political party as at 30th April 2013, a confirmation from the IEBC that the 3rd respondent was its polling clerk at Chepkoya Polling Centre during the 4th March 2013 General Elections.

In a brusque one sentence decision delivered on 7th June 2013, the Committee dismissed the complaint saying;

“Complaint dismissed for lack of evidence and its inability to prove the complaint (sic)”.

Against that decision, the appellant, upon obtaining leave brought High Court Judicial Review Application No. 216 of 2013 before the High Court (Mumbi Ngugi, Majanja & Korir, JJ) for orders of certiorari,prohibition and mandamus.Again in a terse judgment the learned Judges in dismissing the application concluded that:-

“As regards Jane Ingo, her name was not on the original list submitted within the statutory period to IEBC. As to whether Ms. Irene Kimutai Chesang’ was entitled to be on the URP list was really a matter for the party to decide and therefore outside the jurisdiction of the party (sic) to intervene.”

It is that decision that has provoked this appeal. The appellant relies on several grounds which we have condensed in the order they were argued by Mr. Ndetto, learned counsel for the appellant:-

That the IEBC published the 3rd respondent in violation of the Constitution, Political Parties Act and the Elections Act.

That the rules of natural justice were not adhered to as the appellant was not heard.

Although no issue was taken with regard to the content of the judgment, we are duty-bound in our appellate jurisdiction to point out apparent errors. It is elementary learning that a judgment must contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such determination. See Order 21 Rule 41of the Civil Procedure Rules, 2010. See Section 169of the Civil Procedure Act Cap 21 Laws of Kenya. The appellant’s notice of motion for judicial review was disposed of in two sentences, with no background facts or the question(s) for determination but only a decision without reasons.

Being a judicial review application, the High Court as the Constitutional Court and court constitutionally charged with supervision of administrative bodies and officials, ought to have subjected the evidence presented by parties to the usual considerations of whether the IEBC acted in excess of or without jurisdiction; whether it acted in violation of the rules of natural justice or in contravention of the law. There was no consideration at all of these basic principles. It is no justification that the court was dealing with numerous applications and petitions within strict statutory time lines. There cannot be an alternative to due process by the courts which they themselves demand of administrative bodies.

Applying those well-known principles to the matter before the High Court, the court ought to have considered whether, with the evidence presented by the parties, the IEBC failed to hear the appellant. On our assessment and upon our perusal of the record, we entertain no doubt that the appellant was heard, indeed heard twice. She got the opportunity to present her evidence mostly in the form of documents to support her contention that she was the party’s validly nominated candidate and that the 3rd respondent did not qualify for the nomination.

The Committee as an administrative body exercising a quasi judicial function was under an obligation to act fairly and reasonably towards the parties before it and to comply with all the requirements imposed on it by law. It was stated in Kenya National Examination Council V. Republic exparte Geoffrey Githinji & Others, Civil Appeal No. 266 of 1966 and in a long line of other decisions and it bears repeating here that an order of certiorari will issue to quash a decision made without or in excess of jurisdiction or where the rules of natural justice are not observed. Mandamus on the other hand is a command by the High Court to an inferior tribunal or administrative body requiring it to do a particular thing pertaining to its office in the nature of a public duty which the tribunal or body has failed to perform.

An order of prohibition forbids the tribunal or body to continue with proceedings in excess of its jurisdiction or in contravention of the laws of the land or in violation of the rules of natural justice.

We have already drawn the conclusion that the appellant was heard. We turn to consider whether the Committee did not have or exceeded its jurisdiction. The IEBC is established under Article 88of the Constitution to, among other things, conduct and supervise elections to any elective body or office under the Constitution or any other elections under any Act of Parliament, monitor the compliance with legislation in matters of nomination of candidates by parties under the Elections Act. It also is responsible under the same Article for the settlement of electoral disputes including disputes arising from nominations.

Further, Section 34 (6) of the Elections Act requires political parties to nominate candidates for various seats in Parliament and County Assembly and to submit the list to the IEBC. It is for the IEBC to ensure that parties, in compiling the list have paid regard to requirements as to qualification, gender and other diversities under the Constitution and statute. To the extent that the IEBC has both constitutional and statutory obligation to receive party lists and to vet the nominees in order to ensure they are qualified and meet the criteria for election and to the extent that it has the power to settle disputes from the nomination exercise, we hold that it has jurisdiction to entertain disputes from nominations and did so in the matter before us. The next question is whether in entertaining this dispute and in issuing the orders it did, the IEBC exceeded its jurisdiction.

In vetting party lists submitted for County Assembly seats, the IEBC must ensure inter aliathat the candidate:

is registered as a voter;

satisfies any educational, moral and ethical requirements;

is not a State Officer

is a member of the nominating political party.

Section 34 (8)of the Political Parties Act stipulates that:-

“34 (8) A person who is nominated by a political party under subsection (2) (3) and (4) shall be a person who is a member of the political party on the date of submission of the party list by the political party.”

The list carrying the name of the 3rd respondent was submitted to the IEBC on 30th January 2013. Yet on 30th April 2013, three months after the date of submission, the Registrar of Political parties wrote to the appellant concerning the 3rd respondent as follows:-

“……..According to records held in this office, Irene Kimutai Chesang – ID No. 25579493 is not a member of a fully registered political party as at 30th April 2013. ”

Under Section 34 of the Political Parties Act, the Registrar of political parties is the conclusive authority on the question of party membership. A month later, URP through its Executive Director/Legal Counsel wrote advising the Chairman IEBC that,

“We request your office to replace Irene Kimutai Chesang from BUNGOMA COUNTY (sic) with JANE CHEPERENGER INGO of ID No. 7584202. It has been established that IRINE KIMUTAI CHESANG is not a registered member of URP, she only worked for IEBC as a polling clerk.”

A feeble but belated attempt was made on 2nd July 2013 way after the matter had moved from the Committee to the High Court and after the application argued, by a letter “to whom it may concern” allegedly signed by one Hon. David Koech as the Executive Director, to the effect that the 3rd respondent was a member of URP, a clear case of saving the skin.

The two main contentions on party membership and employment by IEBC were not controverted before the Committee or the High Court. The IEBC itself confirmed that the 3rd respondent served it as a polling clerk at Chepkonya Polling Station based at Chepkonya Primary School during the 4th March 2013 general elections. The Fourth Schedule made pursuant to Section 16 of the IEBC Act expressly prohibits its staff from being appointed or nominated by a political party during the tenure of their office.

We are persuaded by this evidence and the law that the IEBC ought to have noted these anomalies regarding the nomination of the 3rd respondent and would have proceeded under Regulation 54 of the Election (General) Regulations, 2012 to reject the name of the respondent. Similarly, with the material placed before it, the High Court ought to have, by certiorari,quashed the decision of the Committee and directed it by mandamus to seek from URP a fresh list.

For these reasons, we allow the appeal, set aside the decision of the High Court dismissing the appellant's notice of motion. We allow the motion and order the revocation of the nomination and election of the 3rd respondent. We further order; URP to conduct fresh nominations and submit within fifteen (15) days from the date hereof its nominee to the IEBC in accordance with the law. Both the IEBC and the 3rd respondent shall bear the costs of this appeal.

Dated at Nairobi this 20th day of December, 2013.

R. N. NAMBUYE

………………………………

JUDGE OF APPEAL

P. M. MWILU

………………………….

JUDGE OF APPEAL

W. OUKO

……………………….

JUDGE OF APPEAL

I certify that this is a

true copy of the original

DEPUTY REGISTRAR