[2013] KEHC 5732 (KLR)
The court found that the IEBC fulfilled its constitutional and statutory obligations by acting on the party list submitted by the TNA as a national entity, not by its Nairobi County branch. The dispute raised by the petitioners concerned internal party processes and the party's failure to follow its own nomination...
Source-derived case information.
- Citation
- [2013] KEHC 5732 (KLR)
- Parties
- Applicant: John Njoroge; Applicant: Maina Waweru; Respondent: The Independent Electoral & Boundaries Commission; Respondent: The National Alliance Party (TNA)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 323 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Party List Nominations, Gender Top Up Seats, Electoral Supervision, Internal Party Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njoroge
Applicant
Maina Waweru
Applicant
The Independent Electoral & Boundaries Commission
Respondent
The National Alliance Party (TNA)
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the IEBC failed in its constitutional and statutory duty to supervise the nomination of TNA's party list for gender top-up seats in Nairobi County.
- 2 Whether the dispute regarding the composition of the party list is an internal party matter outside the jurisdiction of the IEBC and the court.
- 3 Whether the petitioners are entitled to orders of prohibition and mandamus against the IEBC regarding the gazettement of TNA nominees.
Ratio Decidendi
The court found that the IEBC fulfilled its constitutional and statutory obligations by acting on the party list submitted by the TNA as a national entity, not by its Nairobi County branch. The dispute raised by the petitioners concerned internal party processes and the party's failure to follow its own nomination rules, which are not within the purview of the IEBC or the High Court to adjudicate. The proper forum for such disputes is the Political Parties Tribunal. Consequently, the court found no fault with the IEBC's decision to rely on the list submitted by the party and dismissed the petition.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT KENYA AT NAIROBI
PETITION NO 323 OF 2013
JOHN NJOROGE……………………………………………………………………1ST PETITIONER
MAINA WAWERU …………………………………………………………………2ND PETITIONER
VERSE
THE INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION ……………………………………………1ST RESPONDENT
THE NATIONAL ALLIANCE PARTY (TNA) ………………………………2ND RESPODNENT
JUDGMENT
The petitioners, who had filed complaints nos. IEBC/DRC/ PL/430 and 119 of 2013, are aggrieved by the decision of the respondent dismissing the complaints. In the application dated 1st July 2013, the petitioners contend that the respondent failed to supervise the Interested Party, The National Alliance, in its nomination of persons for the gender top –up seats for Nairobi County; that the TNA’s constitution provides at Rule 67 the manner of nomination, which was not followed in this case; that even though this was pointed out to the respondent, it maintained the list of the 2nd – 5th Interested parties who were on the list submitted by TNA.
The position of the 1st respondent is that the petitioners’ complaints before it raised omnibus matters, all related to the 1st Interested Party’s internal party issues. It submitted that it could not enter into those issues, and that it is not clear what relief the petitioners are seeking in this matter.
The 2nd respondent supported the position taken by the 1st respondent and contended that the application seeks to open up party lists and is basically a political party dispute that falls for determination under section 40 of the Political Parties Act by the Political Parties Tribunal.
Determination
In the application dated 1st July 2013, the applicants seek orders of prohibition to stop the 1st respondent from gazetting the TNA nominees for Nairobi County as the list was made arbitrarily; an order of Mandamus to compel the respondent from gazetting and publishing the TNA party list with the names of the nominees who were not duly vetted and chosen as nominees by the applicants; and that the said orders operate as a stay.
As we understand it, the applicants, who are officials of the TNA, are aggrieved that their party did not take on board the recommendations of the County Nomination Advisory Board, Nairobi County, with regard to who should be nominated to the County Assembly. They are aggrieved by what they perceive as the failure by the 1st respondent to supervise the compilation of the TNA party list.
From the detailed decision of the IEBC dated 7th June 2013, the complaint by the applicants in this matter was IEBC/NDRC/PL/115/2013. The issue placed before the respondent was that TNA did not follow its nomination rules and procedures, and that the list submitted by the Party to IEBC was not the one forwarded to the IEBC by TNA Nairobi County.
In its decision dismissing the complaint, the 1st respondent stated that it relied on the list submitted by the party.
After considering the matters raised by the parties to this matter and reading the decision of the 1st respondent impugned in this petition, we are unable to find any fault with this decision of the 1st respondent. Its obligation under the Constitution and the Elections Act was to nominate those to take up the special interest seats or the gender top up seats on the basis of party lists submitted by parties, not by branches of parties. This dispute, as correctly argued by the respondents, pertains to internal TNA matters, which neither the 1st respondent nor the court can enter into.
The petition is therefore hereby dismissed with no order as to costs.
Dated, Delivered and Signed at Nairobi this 12th day of July 2013
MUMBI NGUGI D. S. MAJANJA WELDON KORIR
JUDGE JUDGE JUDGE