[2013] KEHC 5625 (KLR)
The court held that the dispute was fundamentally between the petitioner and her political party regarding the party list nominations. According to the Political Parties Act, such disputes must be addressed through the party's internal dispute resolution mechanisms and, if unresolved, referred to the Political...
Source-derived case information.
- Citation
- [2013] KEHC 5625 (KLR)
- Parties
- Applicant: Marcella Kerubo Ontiri; Respondent: The Independent Electoral and Boundaries Commission; Respondent: The National Alliance; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 326 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Party List Nominations, Dispute Resolution Mechanisms, Political Parties Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marcella Kerubo Ontiri
Applicant
The Independent Electoral and Boundaries Commission
Respondent
The National Alliance
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the dispute regarding party list nominations should be resolved by the Political Parties Disputes Tribunal or the court.
- 2 Whether the petitioner was validly excluded from the party list submitted to the IEBC.
- 3 Whether the nomination process complied with constitutional and statutory requirements.
Ratio Decidendi
The court held that the dispute was fundamentally between the petitioner and her political party regarding the party list nominations. According to the Political Parties Act, such disputes must be addressed through the party's internal dispute resolution mechanisms and, if unresolved, referred to the Political Parties Disputes Tribunal. The court found no evidence that the petitioner's name was submitted to the IEBC by the party, and the IEBC acted within its mandate by publishing the list as received. There was no legal basis to intervene, and the orders sought would affect third parties not before the court. Consequently, the petition was dismissed for lack of merit.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. 326 OF 2013
MARCELLA KERUBO ONTIRI..........................................PETITIONER
VERSUS
THE INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION......................1ST RESPONDENT
THE NATIONAL ALLIANCE....................................2ND RESPONDENT
THE ATTORNEY GENERAL ...................................3RD RESPONDENT
JUDGMENT
The petitioner, Marcella Kerubo Ontiri, was the complainant before the Disputes Resolution Committee (the Committee) in complaint No. IEBC/NDRC/PL/21/2013- MERCELA KERUBO ONTIRI v TNA consolidated with IEBC/NDRC/PL/22/2013 ALEX OMONDI NYAIRO v TNA.Acting on the powers donated to it by Article 88 (4) (e) of the Constitution the 1st Respondent, Independent Electoral and Boundaries Commission (IEBC), had established the Committee to hear disputes arising out of nominations to the county assemblies by political parties in respect of the seats envisaged by Article 177(1) (b) and (c) of the Constitution. The Petitioner’s complaint was in relation to the party list for the 2nd Respondent, the National Alliance Party (TNA) in respect of Nakuru County Assembly.
The Committee dismissed the Petitioner’s complaint on the ground that there is no provision in the law prohibiting a political party from nominating an individual who was a candidate in the party primaries as long as the nominee did not contest on another party. The 1st Respondent also observed that the Petitioner’s name was not on the list submitted to it by the 2nd Respondent.
It is the Petitioner’s case that she was in the Gender Top Up category of the original TNA list submitted to the 1st Respondent on 23rd January, 2013. When the 1st Respondent published the list of the nominees on 21st May, 2013 she realized that one Joseph Mangari had been allocated the County Assembly seat for the Marginalized Group. She also argued that two other nominees had contested in the party primaries and were thus not qualified to be nominated. The Petitioner further contended that another nominee belonged to the GNU Party but had been nominated to take up the 2nd Respondent’s slot.
The 1st Respondent opposed the petition through a replying affidavit sworn on 4th July, 2013 by its Legal Officer, Mr. Moses Kipkogei. It is the 1st Respondent’s case that the name of the petitioner was never submitted to it by the 2nd Respondent and all the slots were correctly filled by the people deserving those seats.
The 2nd Respondent opposed the petition by way of a statement of grounds of opposition dated 4th July, 2013. It is the 2nd Respondent’s case that what is before this court is a dispute between a member and her party and the same ought to have been heard by the Political Parties Tribunal created by the Political Parties Act, 2011.
We have considered the submissions herein and we find that:-
Any dispute between a member of a political party and a political party ought to be resolved using the internal dispute resolution mechanism of the party and where that fails, the matter can be referred to the Political Parties Disputes Tribunal created by Section 39 of the Political Parties Act, 2011.
The dispute that was place before the 1st Respondent was a dispute between a member of a political party and her political party (the 2nd Respondent) and it ought to have been referred to the Political Parties Disputes Tribunal by the Petitioner.
After considering the facts presented to it, the 1st Respondent made a finding to the effect that the name of the Petitioner was not in the list submitted to it by 2nd Respondent. This was a decision reached on the facts placed before the 1st Respondent and there is nothing placed before us to make us arrive at a different conclusion.
The Petitioner seeks orders which will affect third parties who are not before us.
For the reasons aforesaid, we find that the 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