[2013] KEHC 5702 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 310 OF 2013

JOHN NGURE GATHUGU........................................1ST PETITIONER

JAMES WAWERU GACHIBIRI ..............................2ND PETITIONER

JOSEPHINE WANJIKU KAMAKU ..........................3RD PETITIONER

BETH WAMBUI KARIMI .........................................4TH PETITIONER

LOISE WAIRIMU NDEGE .......................................5TH PETITIONER

ANN PRISCILLA WANGECHI MURAGE .................6TH PETITIONER

MARGARET WAMBUI NGURE ..............................7TH PETITIONER

JECINTA WANJIKU GICHIRU .................................8TH PETITIONER

LUCY WANGARI KIBERA ........................................9TH PETITIONER

JANE WANGITHI MUTHEE .....................................10TH PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION...........................1st RESPONDENT

THE NATIONAL ALLIANCE PARTY .....................INTERESTED PARTY

JUDGMENT

In the petition dated 19th June, 2013 the ten petitioners before us seek, inter alia, the following orders:-

A Declaration that the Respondent has not complied with Article 90 of the Constitution of Kenya 2010, Sections 34(4), 36(a) and (f) of the Elections Act, 2011 and Section 7(2) of the County Government Act in determining the final nomination list as per the ruling of 7th June, 2013.

A Declaration that the Petitioners are the validly proposed and nominated by the Interested Party as members of Kirinyaga County Assembly.

A permanent injunction be issued to restrain the Respondent from publishing the names of the final list or as per its ruling of 7th June, 2013 in the Kenya Gazette or any other publication.

A mandatory injunction be issued compelling the Respondent to accept and gazette the names of the petitioners as the nominees to the Kirinyaga County Assembly.

The 1st Petitioner was the applicant in COMPLAINT NO. IEBC/NDRC/ PL/13/2013-JOHN NGURE GATHUNGU V TNA before the Disputes Resolution Committee (the Committee) created by the Respondent, the Independent Electoral and Boundaries Commission, to hear disputes arising out of nominations made by political parties to the county assemblies in respect of the seats contemplated by Article 177 (1) (b) and (c) of the Constitution. This dispute was in respect of the TNA Party list for Kirinyaga County Assembly. After hearing the dispute, the Committee in a ruling delivered on 7th June, 2013 dismissed the Petitioner’s complaint.

From the papers filed in court, the issue before the Committee was whether the list submitted to the Respondent by the Interested Party, the National Alliance Party (TNA), was the same with the list in the Respondent’s custody. It was also argued that the list with the Respondent was not the list the Interested Party intended to submit. The Committee found that there was no evidence adduced to show that the list submitted to it was not the one intended to be submitted by the party.

The petitioners now want us to make the already reproduced declarations on the ground that the Respondent’s ruling breached the Constitution and the Elections Act, 2011.

The Respondent opposed the petition through an affidavit sworn by its Legal Officer Mr. Moses Kipkogei on 4th July, 2013. The Interested Party opposed the application by way of a statement of grounds of opposition dated 4th July, 2013. The Respondent’s case is that there was no evidence placed before it to show that the list submitted to it by the Interested Party was the wrong list. The Interested Party argued that this is a dispute between a member of a political party and a political party and the same ought to have been heard by the Political Parties Disputes Tribunal created under the Political Parties Act, 2011.

We have considered the arguments herein and find that :-

The dispute that was placed before the Respondent was a dispute between the Interested Party and its member (the 1st Petitioner) and the same ought to have been resolved using the internal party mechanism for solving disputes, failing which the same ought to have been dealt with by the Political Parties Disputes Tribunal.

The composition of a party list and the ranking therein is a matter for the party to deal with and the Respondent’s role is limited to ensuring that the same complies with the Constitution and the law.

There is nothing before us to make us fault the finding of the Respondent that the list before it did not originate from the Interested Party or that it was not the correct list.

For the reasons aforesaid, we find that this petition lacks merit and we dismiss it 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