[2012] KEHC 5965 (KLR)
The court declined to issue conservatory orders because the nomination process had not yet taken place. The judge reasoned that if the nomination occurs and is found to infringe the Constitution, the court retains the power to set it aside. The matter was deemed premature for intervention, as it was primarily a...
Source-derived case information.
- Citation
- [2012] KEHC 5965 (KLR)
- Parties
- Applicant: Michael Wachira Nderitu; Applicant: Silvester Kihuria Muriithi; Applicant: Daniel Wachieni Karinga; Applicant: Kiambiti K. Kihumba; Respondent: Mary Wambui Munene; Respondent: Director of Public Prosecutions; Respondent: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 549 of 2012
- Procedural Posture
- Constitutional Petition / Ruling on Application for Conservatory Orders
- Outcome
- Application for conservatory orders declined.
- Judges
- DAS Majanja
- Legal Topics
- Conservatory Orders, Jurisdiction of High Court, Electoral Nominations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Wachira Nderitu
Applicant
Silvester Kihuria Muriithi
Applicant
Daniel Wachieni Karinga
Applicant
Kiambiti K. Kihumba
Applicant
Mary Wambui Munene
Respondent
Director of Public Prosecutions
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Conservatory Orders
Legal Issues
- 1 Whether the High Court should issue conservatory orders restraining the interested party from nominating and registering the 1st respondent as a candidate for Member of Parliament for Othaya Constituency pending determination of the application.
Ratio Decidendi
The court declined to issue conservatory orders because the nomination process had not yet taken place. The judge reasoned that if the nomination occurs and is found to infringe the Constitution, the court retains the power to set it aside. The matter was deemed premature for intervention, as it was primarily a party matter and not one that warranted conservatory relief at this stage. The court emphasized its jurisdiction to grant such orders but found no compelling factual basis to exercise that discretion at this point in the proceedings.
Court Disposition
Application for conservatory orders declined.
Orders
- Prayer for conservatory orders is rejected at this stage.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 549 OF 2012
BETWEEN
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MICHAEL WACHIRA NDERITU……………................................................1ST PETITIONER
SILVESTER KIHURIA MURIITHI……….....................................................2ND PETITIONER
DANIEL WACHIENI KARINGA……..........................................................3RD PETITIONER
KIAMBITI K. KIHUMBA……………...........................................................4TH PETITIONER
AND
MARY WAMBUI MUNENEAKA MARY WAMBUI.......................................1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS................................................2ND RESPONDENT
HON. ATTORNEY GENERAL ...................................................................3RD RESPONDENT
AND
THE INDEPENDENT ELECTORAL ANDBOUNDARIES COMMISSION...1ST INTERESTED PARTY
THE NATIONAL ALLIANCE PARTY (TNA) ............................................2ND INTERESTED PARTY
RULING
1. The application before me today is the chamber summons dated 29th November 2012 and it seeks certain conservatory orders to wit, “pending the hearing and determination of this application a conservatory order do issue restraining the interested party from nominating and for registering the 1st respondent as a candidate for the office of Member of Parliament for Othaya Constituency.”
2. I have given directions as both hearing of a preliminary objection to be lodged by the 1st respondent and the issue is whether I should issue a conservatory order. I must make it very clear that this court, the High Court, has jurisdiction under Article 23 and Article 165 to issue such an order but whether I should do so depends on the facts before me.
3. I am far from convinced that this is an appropriate case to issue such orders as the nomination is yet to take place and if it does and it infringes the Constitution then this court can set it aside without difficulty as the matter is really a party matter.
4. I decline and reject the prayer for conservatory orders at this stage.
DATEDandDELIVERED at NAIROBI this 5th day of December 2012
D.S. MAJANJA
JUDGE