[2017] KEHC 9288 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW APPLICATION NO. 501 OF 2017

JUBILEE PARTY OF KENYA................................................EX PARTE APPLICANT

VERSUS

INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION.....RESPONDENT

HELLEN WANJIKU & OTHERS...........................................INTERESTED PARTIES

RULING

The Ex Parte Applicant came before this court by way of Chamber Summons dated 14th August 2017 seeking leave to file for Judicial Review Orders of certiorari, prohibition and mandamus to quash the decision of the Independent Electoral & Boundaries Commission (IEBC) dated 20th July 2017; to prohibit IEBC from gazetting or publishing the names of Nominees to the Party List of Kiambu County Assembly without the names of certain nominees and to order IEBC to include the omitted names of certain nominees in the Party List for the Kiambu County Assembly respectively. This court, on 21st August 2017, granted leave sought and directed that the application for Judicial Review Orders be filed and served on the Respondents within one week from 21st August 2017 and that the Respondents to file their response within one week after service of the Application. This court further directed that the matter shall be heard on 5th September 2017.

This morning, Mr. Rono for the Applicant told the court that the Application has been overtaken by events after the gazettement of the Party List in respect of Party Lists for Kiambu County Assembly on 28th August 2017 and therefore the prayers sought are spent. He applied to withdraw the Application with no order to costs.

Mr. Lumumba for the Interested Parties submitted that the Interested Parties filed their application on 28th August 2017 seeking to have the gazette notice declared null and void. He asked this court to hear the application. Mr. Lumumba sought costs in the event that this court allows the Ex Parte applicant to withdraw its claim.

Mr. Tollo for the Respondent submitted that once the main application has been withdrawn, any application based on the main application stands withdrawn because the same reasons given by the applicant in the main application equally apply to the subsequent applications.

The Judgment of the IEBC that the Ex Parte Applicant sought to quash is dated 28th August 2017. It is in respect of the Party List for Kiambu County. The gazette notice in question is Number 8380 dated 28th August 2017. I have considered the application by Mr. Rono to withdraw this matter given that gazettement has been done and I find the application meritorious. Once gazettement has been done, the mandate of the IEBC comes to an end and any dispute arising from the said nomination shifts to the Election Courts. This is the view taken by the Supreme Court in Supreme Court Petition No. 1 of 2015 Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others reported in [2016] eKLR where that Court stated as follows:

“It is therefore clear that the publication of the Gazette Notice marks the end of the mandate of IEBC, regarding the nomination of party representatives, and shifts any consequential dispute to the Election Courts. The Gazette Notice also serves to notify the public of those who have been “elected” to serve as nominated members of a County Assembly.”

In view of this I hereby allow the Ex Parte Applicant to withdraw this matter to allow parties to pursue other methods for resolution of any dispute they may have.

Secondly, there is the issue of the application dated 28th August 2017. It is brought by the Interested Parties and it seeks to restrain IEBC from publishing and/or gazetting the Ex Applicants Party List for Kiambu County Assembly pending the hearing and determination of this application and in the alternative to declare the publication and/or gazettement null and void. The application also seeks costs.

It is clear to me that there is nothing to stop in respect of prayer one (i) because the gazettement has already been done. In view if the judgment of the Supreme Court cited above, the only recourse available to the Interested Parties is to seek redress in the right forum, that of the Election Court. I therefore decline to grant the prayers sought by the Interested Parties in this matter. I farther find that with the main application having been withdrawn this application cannot stand and must be dismissed, which I hereby do. I further order that each party shall bear its own costs.

Orders shall issue accordingly.

Delivered, signed and dated this 5th day of September 2017.

S. N. Mutuku

Judge