[2012] KEHC 5546 (KLR)

[2012] KEHC 5546 (KLR)

The court found that the preliminary objection was properly taken as there was no contest on the material facts, and the issues raised were pure points of law. The petitioners did not challenge Legal Notice No.14 of 2012 within the constitutionally prescribed 30-day window, and their attempt to do so after the lapse of time was not permissible. The court held that entertaining the petition would amount to a fresh delimitation exercise, which is outside the court's mandate and contrary to the constitutional and statutory framework. Furthermore, the issues raised in the petition were either determined or ought to have been raised in Nairobi HC Misc. Application No.94 of 2012, rendering the...

Citation
[2012] KEHC 5546 (KLR)
Parties
Applicant: Samwel Ondieki Makori; Applicant: Yuvenalis Mokaya Obuki; Applicant: Moruri Edwin Samwel; Respondent: The Independent Electoral & Boundary Commission; Respondent: The Attorney General; Interested Party: Hon. Richard M. Onyonka; Interested Party: Hon. Robert Monda
Court
High Court
Court Station
High Court at Kisii
Jurisdiction
Kenya
Judgment Date
28 November 2012
Case Number
Petition 41 of 2012
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Outcome
Petition and chamber summons dismissed. Each party to bear its own costs.
Legal Topics
Electoral Boundaries, Voter Registration, Jurisdiction of High Court, Res Judicata, Public Interest Litigation
Source Language
English
Constitutional Law Administrative Law Electoral Boundaries Voter Registration Jurisdiction of High Court Res Judicata Public Interest Litigation

Case Brief

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Parties

Samwel Ondieki Makori

Applicant

Yuvenalis Mokaya Obuki

Applicant

Moruri Edwin Samwel

Applicant

The Independent Electoral & Boundary Commission

Respondent

The Attorney General

Respondent

Hon. Richard M. Onyonka

Interested Party

Hon. Robert Monda

Interested Party

Procedural Posture

Constitutional Petition / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the preliminary objection meets the threshold as set out in Mukisa Biscuit case.
  2. 2 Whether the petition is time-barred by virtue of the decision in Nairobi HC Misc. Application No.94 of 2012.
  3. 3 Whether the petition is res judicata the judgment in Nairobi HC Misc. Application No.94 of 2012.

Ratio Decidendi

The court found that the preliminary objection was properly taken as there was no contest on the material facts, and the issues raised were pure points of law. The petitioners did not challenge Legal Notice No.14 of 2012 within the constitutionally prescribed 30-day window, and their attempt to do so after the lapse of time was not permissible. The court held that entertaining the petition would amount to a fresh delimitation exercise, which is outside the court's mandate and contrary to the constitutional and statutory framework. Furthermore, the issues raised in the petition were either determined or ought to have been raised in Nairobi HC Misc. Application No.94 of 2012, rendering the...

Court Disposition

Petition and chamber summons dismissed. Each party to bear its own costs.

Orders

  • The preliminary objection dated 23rd November 2012 is upheld.
  • The chamber summons and petition dated 20th November 2012 are dismissed.