[2022] KEHC 12797 (KLR)

Murira v Returning Officer, North Imenti Constiutency & another (Miscellaneous Civil Application E048 of 2022) [2022] KEHC 12797 (KLR) (26 August 2022) (Ruling)

Neutral citation: [2022] KEHC 12797 (KLR)

Republic of Kenya

In the High Court at Meru

Miscellaneous Civil Application E048 of 2022

EM Muriithi, J

August 26, 2022

IN THE MATTER OF AN APPLICATION TO BRING JUDICIAL REVIEW PROCEEDINGS AGAINST IEBC AND IN THE MATTER OF ARTICLE 35, 86 AND 81 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF SECTION 39 OF THE ELECTIONS ACT

IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT CAP 26 OF THE LAWS OF KENYA

IN THE MATTER OF THE CIVIL PROCEDURE ACT CAP 21 LAWS OF KENYA

Between

Lewis Kithinji Murira

Applicant

and

Returning Officer, North Imenti Constiutency

1st Respondent

Independent Electoral and Boundaries Commission

2nd Respondent

Ruling

1. By a chamber summons dated August 17, 2022, the ex-parte applicant sought leave to file judicial review proceedings, principally, for “an order of mandamus to compel the 1st respondent (who was the returning officer) to discharge his statutory and publicly tally, announce and declare the candidate who won the member of County Assembly for Nyaki West Ward, North-Imenti Constituency in Meru held on August 9, 2022”. Leave was also sought to file proceedings for collateral order of certiorari, prohibition, and stay directed at the decision of the respondents to hold elections for the ward on August 23, 2022, later postponed to August 29, 2022.

2. The applicant’s case is that the voting in Nyaki West Ward proceeded on the August 9, 2022 during the general election and that, subsequently, all the votes were counted but results were not publicly announced. The applicant contends that the failure to announce the results is illegal for contrary to section 83(1) (a) and (f) of theElections (General Regulations) 2012 and section 39(1) and 1A (1) of the Elections Act which require returning officers to tally, announce and declare results, as well as the constitutional right to information under article 35 of the Constitution.

3. By replying affidavit sworn on August 24, 2022, the 1st respondent returning officer explained that a decision was taken to postpone the election a Nyaki West Ward on account of an anomaly discovered when the polling stations were opened on August 9, 2022 that “whereas forms 36A which is used for recording of results for member of county assembly at the polling stations contained the names of all the candidates, the ballot papers omitted the name of Mr Hillary Mutuma Mugambi.” The returning officer said that she sought directions from IEBC (2nd respondent) and advised the presiding officers “to await communication from the 2nd respondent on whether elections for member of county assembly Nyaki West Ward would proceed in light of the omission of the name of one of the candidates in the ballot papers which was contrary to the court order of July 8, 2022”. The returning officer further deponed that some presiding officers did not effectively communicate her instructions to the polling clerks hence voting for member of county assembly proceeded in some polling stations, and that at 5:00 pm on August 9, 2022 theIEBC issued a statement on broadcast media to the effect that election for member of county assembly Nyaki West had been postponed and was to be conducted in two weeks’ time.

4. In a further affidavit sworn August 25, 2022 the applicant responded, principally, that “the applicant is not privy to the filed suit namely Meru High Court Petition No E006 of 2022; Hillary Mutuma Mugambi alias Hillary Sandi v Returning Officer North Imenti and IEBC”, in which the order for mandamus to admit the petitioner’s clearance letters and notification of intention to view and to consider his application for nomination as an independent candidate was made. The applicant consequently contended that the respondent cannot abdicate their statutory and constitutional duty on the ground that one candidate was not included in the ballot.

Principles for the grant of leave to file Judicial Review proceedings 5. In considering, the application before this court for leave to file judicial review, the court is guided by the test in Meixner & Anor v AG[2005] 2 KLR 189 that an application for leave has to demonstrate an arguable case for the grant of the judicial review orders sought.

6. In this regard, the court does not accept that an election in which the name or names of candidates who are properly nominated, with or without an order of the court for the IEBC to consider their application, is or are omitted is valid.

7. It is immaterial that the application is privy or not to a suit by which theIEBC is ordered to consider a candidate for clearance. The candidate was considered for clearance by the 2nd respondent and nominated to vie for the Nyaki West Ward in the election of August 9, 2022. If, upon nomination, there is subsequent failure to include his name on the ballot such an election cannot be valid.

8. To be sure, the IEBC in furtherance of its nomination of the candidate Hillary Mutuma Mugambi prepared the recording sheet form 36 A with the name of the candidate and only the ballot paper did not contain his name.

9. As the ballot paper did not contain the name of the duly nominated candidate, there would be no way for voters who wished to vote for the candidate to vote for him, even if his name as set out in the recording sheet form 36A.

10. The court, therefore, respectfully agrees with the respondents that there was “a fundamental flaw in the process, i.e. omission of one of the candidates from the ballot contrary to an order of this court, coupled with the communication from the 2nd respondent post phoning elections for Member of County Assembly Nyaki West Ward, [and] no tallying and no results was to be declared because no election was conducted.”

11. There having been no valid election conducted from Member of County Assembly Nyaki West Ward, there can be no breach of the provisions of the Elections (General) Regulations 2012, the Election Act and the Constitution as to the right to declaration of results and right to information thereof.

ORDERS 12. The court does not, therefore, find that an arguable case (let alone prima facie case), has been made out by the applicant to justify the grant of the orders of mandamus, certiorari, and prohibition sought in the intended judicial review proceedings and leave therefore is declined.

13. For avoidance of doubt, the election for member of court assembly for Nyaki West Ward shall proceed on August 29, 2022 as scheduled by the IEBC.

14. There shall be no order as to costs.Order accordingly.

DATED AND DELIVERED THIS 26TH Day OF AUGUST 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. T. Kataka for the Applicant.Mr. C. Mwongela for the Respondents.