[2013] KEHC 5168 (KLR)
The court held that the Petitioners had not demonstrated that they had invoked and exhausted the dispute resolution mechanisms provided by the Constitution and the Elections Act for nomination disputes. The court found that the Petition was premature as the Petitioners sought judicial intervention without first...
Source-derived case information.
- Citation
- [2013] KEHC 5168 (KLR)
- Parties
- Applicant: John Mbugua; Applicant: Stephen Omodia; Respondent: The Honourable Attorney General; Respondent: The Ministry of Justice; Respondent: The Independent Electoral and Boundaries Commission (IEBC); Respondent: Registrar of Political Parties
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 92 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- DO Ogembo
- Legal Topics
- Right to Participate in Elections, Exhaustion of Statutory Remedies, Nomination Disputes, Independent Candidates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mbugua
Applicant
Stephen Omodia
Applicant
The Honourable Attorney General
Respondent
The Ministry of Justice
Respondent
The Independent Electoral and Boundaries Commission (IEBC)
Respondent
Registrar of Political Parties
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the Petitioners were entitled to have their names printed on the ballot as independent candidates for Member of Parliament positions.
- 2 Whether the Petitioners were required to exhaust the dispute resolution mechanisms under Article 88(4)(e) of the Constitution and Section 74 of the Elections Act before approaching the High Court.
- 3 Whether the Petitioners complied with the statutory requirements for independent candidates, specifically submission of a symbol within the prescribed period.
Ratio Decidendi
The court held that the Petitioners had not demonstrated that they had invoked and exhausted the dispute resolution mechanisms provided by the Constitution and the Elections Act for nomination disputes. The court found that the Petition was premature as the Petitioners sought judicial intervention without first seeking redress from the Independent Electoral and Boundaries Commission as required by law. Additionally, the Petitioners failed to rebut the allegation that they did not submit their intended election symbols within the statutory period, which is a mandatory requirement for independent candidates. Consequently, the court dismissed the Petition for failure to comply with the...
Court Disposition
petition dismissed
Orders
- The Petition dated 6th February 2013 and filed on 12th February 2013 is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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JOHN MBUGUA.................................................................................................................1ST PETITIONER
STEPHEN OMODIA...........................................................................................................2ND PETITIONER
VERSUS
THE HONOURABLE ATTORNEY GENERAL...............................................................1ST RESPONDENT
THE MINISTRY OF JUSTICE........................................................................................2ND RESPONDENT
THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC)......3RD RESPONDENT
REGISTRAR OF POLITICAL PARTIES........................................................................4TH RESPONDENT
J U D G E M E N T
1. By a Petitiondated 6th February 2013 the Petitioners petitioned this court for various orders among them:-
1)That the Petitioners be granted leave to commence the Petition as Paupers.
2)That the IEBC – 1st Respondent, be compelled to print the Petitioners names in the ballot for the position of Members of Parliament for Embakasi West and North Constituency as Independent candidates.
2. When the matter came up ex-parte before the court on 11th February 2013, I certified the application urgent and granted the Petitioners the leave to commence these proceedings as Paupers. Having done that, the Petitioners now seek to compel the IEBC to allow them to contest for the above positions as Independent candidates.
3. Only the 3rd Respondent has replied to the application and filed grounds of opposition dated 14th February 2013.
4. I have considered the Petition and the opposition to it. In my view the matters stated in the Petition and application herein constitute a dispute under Article 88 (4) (e) of the Constitution of Kenya as read together with Section 74 of the Elections Act, No. 24 of 2011.
5. The Petitioners/Applicants have not brought evidence before this Court to demonstrate that they have invoked and exhausted the jurisdiction granted to the Commission under Article 88 (4) (e) of the Constitution of Kenya as read together with Section 74 of the Elections Act, No. 24 of 2011, to settle disputes relating to or arising out of nominations.
6. The present proceedings are therefore premature as the Petitioners/Applicants are seeking the intervention of this court without first invoking and exhausting the jurisdiction granted to the Commission under the Constitution and the Elections Act Number 24 of 2011.
7. In any event the Petitioners being independent candidates, are alleged to have failed to submit to the Commission the symbol they intended to use in the forthcoming General Elections, at least twenty one days before the nomination day as required under Section 32 (2) of the Elections Act, number 24 of 2011. The allegation has not been rebutted by the Petitioners.
8. From the foregoing, it is clear that this Petition must fail. I dismiss the Petition by the Petitioners dated 6th February 2013 and filed in court on 12th February 2013 with no orders as to costs.
This is the Judgement of the court.
DATED, READ AND DELIVERED AT NAIROBITHIS 19TH DAY OF FEBRUARY 2013
E. K. O. OGOLA
JUDGE
PRESENT:
Petitioner in person
M/s Thenji for the 3rd Respondent
Teresia – Court Clerk