[2018] KEHC 8320 (KLR)
The court held that since the petitioners made an oral application for recusal and the respondents indicated a desire to respond, procedural fairness required that the application be made formally. This would ensure that the respondents have an opportunity to consider and respond to the issues raised. The court...
Source-derived case information.
- Citation
- [2018] KEHC 8320 (KLR)
- Parties
- Applicant: Hon. Martha Wangari Karua; Applicant: Hon. Joseph Gachoki Gitari; Respondent: The Independent Electoral & Boundaries Commission; Respondent: Mr. Seki Lempaka; Respondent: Hon. Ann Waiguru; Respondent: Hon. Peter Ndambiri
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Election Petition 2 of 2017
- Procedural Posture
- Election Petitions / Post Appellate Remittal; Directions and Interlocutory Applications
- Outcome
- Directions issued for formal application for recusal and scheduling of jurisdictional objection.
- Judges
- LW Gitari
- Legal Topics
- Judicial Recusal, Jurisdiction Objection, Oral Vs Formal Application, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Martha Wangari Karua
Applicant
Hon. Joseph Gachoki Gitari
Applicant
The Independent Electoral & Boundaries Commission
Respondent
Mr. Seki Lempaka
Respondent
Hon. Ann Waiguru
Respondent
Hon. Peter Ndambiri
Respondent
Procedural Posture
Election Petitions / Post Appellate Remittal; Directions and Interlocutory Applications
Legal Issues
- 1 Whether the judge should recuse herself from hearing the petition based on alleged bias or perception thereof.
- 2 Whether an oral application for recusal is procedurally proper or a formal application is required.
- 3 Whether the preliminary objection on jurisdiction was properly raised and should be heard on merit.
Ratio Decidendi
The court held that since the petitioners made an oral application for recusal and the respondents indicated a desire to respond, procedural fairness required that the application be made formally. This would ensure that the respondents have an opportunity to consider and respond to the issues raised. The court further directed that the preliminary objection on jurisdiction, which had been raised without adequate notice to the petitioners, should be scheduled for hearing on merit to allow both parties to argue the matter fully. The court's orders were thus aimed at ensuring procedural fairness and adherence to due process in the conduct of the proceedings.
Court Disposition
Directions issued for formal application for recusal and scheduling of jurisdictional objection.
Orders
- Petitioner to file a formal application for recusal and serve the respondents.
- Preliminary objection on jurisdiction to be given a date and argued on merit.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELECTION PETITION NO. 2 OF 2017
HON. MARTHA WANGARI KARUA.........................1ST PETITIONER
HON. JOSEPH GACHOKI GITARI...........................2ND PETITIONER
-VERSUS-
THE INDEPENDENT ELECTORAL & BOUNDARIES
COMMISSION.............................................................1ST RESPONDENT
MR. SEKI LEMPAKA................................................2ND RESPONDENT
HON. ANN WAIGURU...............................................3RD RESPONDENT
HON. PETER NDAMBIRI.........................................4TH RESPONDENT
RULING
1. In this matter, the Court of Appeal delivered a ruling on 2nd March, 2018 and directed the parties to appear before this Court for directions on hearing and disposal of the petition. The petitioner and her advocate Mr. Gitobu Imanyara appeared. The Respondents were represented by their advocates, Mr. Joe Kathungu for 1st and 2nd respondents and Mr. Nyamondi and Mr. Kamotho Waiganjo for 3rd and 4th Respondents. The Petitioners made an application that I recuse myself contending that I had expressed in strong language a view that goes to the root of the judgment. That justice must not only be done but also seen to be done.
2. The Respondents urged the Court that the Petitioner ought to file a formal application in order to give them an opportunity to respond. It was also contended that the issues being raised were raised before the Court of Appeal and a finding was made.
3. For the 3rd and 4th respondent, it was submitted that they had filed a preliminary objection on the jurisdiction of this Court to hear and determine the petition by virtue of Section 75 (2) of the Elections Act as read with Article 87 (1) of the Constitution.
4. I have considered all the issues raised. I am also alive to the judgment of the Court of Appeal. I find that since the petitioner made an oral application and the respondents have stated that they would wish to respond, it is only fair that the petitioner moves the Court with a formal application. This would give the respondents that opportunity to consider the issues raised and respond if need be. The application may be filed and determined expeditiously. I therefore direct that the Petitioner shall file a formal application for my recusal and serve the respondents.
5. On the issue of jurisdiction which was raised as a preliminary objection, since it was served in Court without giving the petitioners notice and sufficient time to respond, I direct that it will be given a date and argued on merit. Those are the orders of this Court.
Dated and delivered at Kerugoya this 7th day of March, 2018.
L. W. GITARI
JUDGE
Ruling read out in open Court, Mr. Gitobu Imanyara for Petitioner.
Petitioner – present.
Mr. Joe Kathungu for 1st and 2nd Respondents.
Mr. Nyamondi for 3rd and 4th Respondents this 7th day of March, 2018.
L. W. GITARI
JUDGE
07. 03. 2018