[2013] KEHC 5151 (KLR)
The court found that the IEBC Dispute Resolution Committee erred by referring to and standing by its earlier decision, which had already been set aside by the court. The law requires that, upon the setting aside of a decision and the ordering of a re-hearing, the tribunal must conduct a fresh hearing uninfluenced by...
Source-derived case information.
- Citation
- [2013] KEHC 5151 (KLR)
- Parties
- Applicant: Julius Chacha Mabanga; Respondent: Independent Electoral & Boundaries Commission (IEBC); Respondent: Orange Democratic Movement; Interested Party: Mark Chacha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 62 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition_allowed
- Judges
- DAS Majanja, DO Ogembo, GV Odunga
- Legal Topics
- Fair Administrative Action, Right to Fair Hearing, Electoral Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Julius Chacha Mabanga
Applicant
Independent Electoral & Boundaries Commission (IEBC)
Respondent
Orange Democratic Movement
Respondent
Mark Chacha
Interested Party
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner was afforded a fair hearing by the Independent Electoral and Boundaries Commission Dispute Resolution Committee.
- 2 Whether a tribunal can rely on a quashed or set aside decision in subsequent proceedings.
Ratio Decidendi
The court found that the IEBC Dispute Resolution Committee erred by referring to and standing by its earlier decision, which had already been set aside by the court. The law requires that, upon the setting aside of a decision and the ordering of a re-hearing, the tribunal must conduct a fresh hearing uninfluenced by the previous, quashed decision. The Committee's failure to do so amounted to a denial of the petitioner's right to a fair hearing and fair administrative action as guaranteed by the Constitution. Consequently, the court allowed the petition and directed that the Committee conduct a proper hearing de novo.
Court Disposition
petition_allowed
Orders
- The Petition is allowed.
- The IEBC Dispute Resolution Committee is directed to conduct a proper hearing of the dispute de novo as provided by law.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Petition 62 of 2013 [if gte mso 9]><xml>
14. 00
</xml><![endif]
IN THE MATTER OF ARTICLE 23 AND ARTICLE 165 (30 (B), 89(10), 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF AN APPLICATION BY JULIUS CHACHA MABANGA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS
UNDER ARTICLE 47, 50, 90, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010
BETWEEN
JULIUS CHACHA MABANGA .................................................................................................. PETITIONER
AND
THE INDEPENDENT ELECTORAL& BOUNDARIES COMMISSION (IEBC)............1ST RESPONDENT
ORANGE DEMOCRATIC MOVEMENT.........................................................................2ND RESPONDENT
AND
MARK CHACHA ..........................................................................................................INTERESTED PARTY
JUDGEMENT
On 31st January 2013 we heard the Petition No 41 of 2013 involving the Parties herein and directed that dispute therein be heard afresh.
Pursuant to the same determination the petitioner herein filed the present petition alleging that he was not afforded a fair hearing by the Independent Electoral and Boundaries Commission Dispute Resolution Committee.
We have considered the record of the proceeding supplied by the Commission in its determination. The Committee stated inter alia: “the Committee stands by its decision”.
We are unable to apprehend what “decision” the Committee was referring to since in our decision we had set aside its earlier decision.
The Law as we understand it is that where an earliest decision is quashed or set aside and a re-hearing ordered the Tribunal is enjoined to conduct a fresh hearing and the quashed decision cannot be deferred to by the Tribunal in reaching its subsequent decision and ought not to influence the said subsequent decision. See Peter Okeyo Ogila vs. Rachuonyo Farmers Co-Operative Union Ltd. Civil Appeal No. 79 of 1992.
Taking into account the foregoing we are satisfied that the process by which the committee arrived at its decision is not free from error.
We accordingly allow the Petition and direct that the Committee conduct a proper hearing of the dispute de novo as provided by the law.
Having heard the matter we considered that the only matter for the committees to determine is who is the proper party nominee for the contested seat.
We make no order as to costs.
Dated at Nairobi this 6th day of February 2013
D S MAJANJA
JUDGE
E OGOLA
JUDGE
G V ODUNGA
JUDGE