[2015] KEHC 258 (KLR)
The court found that the Political Parties Dispute Tribunal conducted Complaint No. 17 of 2015 in violation of Article 50(1) of the Constitution by failing to summon or serve the applicant, thereby denying her the right to a fair hearing. The Tribunal's decision to remove the applicant from the Nyamira County...
Source-derived case information.
- Citation
- [2015] KEHC 258 (KLR)
- Parties
- Applicant: Naomi Bosibori; Respondent: Political Parties Dispute Tribunal; Respondent: Naomi Bosibori Amenya; Respondent: Speaker, Nyamira County Assembly; Respondent: Kenya National Congress
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 1 of 2015
- Procedural Posture
- Judicial Review Application / Application for Leave to Institute Judicial Review Proceedings
- Outcome
- Leave granted to apply for judicial review orders; leave to operate as stay; application certified urgent.
- Judges
- CB Nagillah
- Legal Topics
- Judicial Review, Right to Fair Hearing, Tribunal Decisions, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naomi Bosibori
Applicant
Political Parties Dispute Tribunal
Respondent
Naomi Bosibori Amenya
Respondent
Speaker, Nyamira County Assembly
Respondent
Kenya National Congress
Respondent
Procedural Posture
Judicial Review Application / Application for Leave to Institute Judicial Review Proceedings
Legal Issues
- 1 Whether the applicant was denied the right to a fair hearing by the Political Parties Dispute Tribunal.
- 2 Whether the Tribunal's decision to remove the applicant from the County Assembly was lawful.
- 3 Whether leave should be granted to apply for orders of certiorari and prohibition against the Tribunal's decision.
Ratio Decidendi
The court found that the Political Parties Dispute Tribunal conducted Complaint No. 17 of 2015 in violation of Article 50(1) of the Constitution by failing to summon or serve the applicant, thereby denying her the right to a fair hearing. The Tribunal's decision to remove the applicant from the Nyamira County Assembly was made without her participation and was therefore procedurally unfair. The court held that such a decision cannot stand and that the applicant had established sufficient grounds for the grant of leave to apply for judicial review orders of certiorari and prohibition. The court further found that the leave granted should operate as a stay of the Tribunal's judgment and its...
Court Disposition
Leave granted to apply for judicial review orders; leave to operate as stay; application certified urgent.
Orders
- The application is certified as urgent.
- Leave is granted to the applicant to apply for a Judicial Review Order of Certiorari to quash the 1st Respondent's decision issued on 1st October, 2015.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
JUDICIAL REVIEW CASE NO. 1 OF 2015
NAOMI BOSIBORI……........................................................….APPLICANT
=VERSUS=
POLITICAL PARTIES DISPUTE TRIBUNAL….………1ST RESPONDENT
NAOMI BOSIBORI AMENYA…………..………………2ND RESPONDENT
SPEAKER, NYAMIRA COUNTY ASSEMBLY…...…….3RD RESPONDENT
KENYA NATIONAL CONGRESS ……......……..……...4TH RESPONDENT
RULING
This is an application for leave to institute Judicial Review proceedings.
The applicant prays for:
Certification of the application as urgent.
That leave be granted to the Applicant to apply for a Judicial Review Order of CERTIORARI bringing into this court for purposes of quashing and to quash the 1st Respondent’s decision issued on 1st October, 2014 in Nairobi. Complaint No. 17 of 2015, Naomi Bosibori Amenya vs Doris Nyabiage Siriba purpoting to declare the 2nd Respondent as the duly nominated and gazetted member of the 4th Respondent to represent the 4th Respondent in Nyamira County Assembly.
That leave be granted to the Applicant to apply for a Judicial Review Order of PROHIBITION prohibiting the 3rd Respondent from ejecting the applicant from Nyamira County Assembly or from interfering with the Applicant’s tenure as a nominated member of Nyamira County Assembly in any other manner whatsoever.
That leave be granted to the Applicant to apply for a Judicial Review Order of PROHIBITION prohibiting the 3rd Respondent from swearing in the 2nd Respondent as the 4th Respondent nominated member of Nyamira County Assembly.
That the leave so granted do operate as a stay of implementation of the judgment, the order and/or decree emanating from the judgment of the Political Parties Dispute Tribunal delivered on 1st October, 2015 in Nairobi in Complaint No. 17 of 2015, Naomi Bosibori Amenya vs Doris Nyabiange Siriba and Another.
The synopses of the facts are as follows:
One, Naomi Bosibori the Applicant herein is a member of Nyamira County Assembly. She is a nominated member of the Nyamira County Assembly. She was duly sworn in as such member on 6th September, 2013.
A complaint was brought by one Doris Nyabiange Siriba & Another purpoting to declare the 2nd Respondent, Naomi Bosibori Amenya, as a duly nominated and gazetted member of the 4th Respondent of Nyamira County Assembly.
That Tribunal, being Political Parties Dispute Tribunal (the 1st Respondent herein) delivered its judgment on 1st of October, 2015 directing that Naomi Bosibori of County Assembly be sworn in within the next 30 days in the place of the Applicant.
This order effectively removes the Applicant from being a member of Nyamira County Assembly and yet she was not summoned by the Tribunal to hear her side of the story against the rule fair hearing, audi alteram partem rule.
The main players are: Naomi Bosibori AmenyaandDoris Nyabiange Siriba initiallyNaomi Bosibori Amenya filed a civil suit in Kisii High Court, Civil Case No. 9 of 2014 against Naomi Bosibori and Nyamira County Government but later withdrew the suit. The curious thing is that later Doris Nyabiange Siriba, perhaps as a member of Kenya National Congress Party to the Political Parties Dispute Tribunal against Naomi Bosibori without serving her with the complaint claim and the Tribunal proceeded with the matter without calling the person affected i.e the Respondent.
This court finds that Complaint No. 17 of 2015 was conducted contrary to Article 50(1) of the Constitution. The relationship between Naomi Bosibori on one hand and Naomi Bosibori Amenya on the other hand and Naomi Bosibori and Doris Nyabiange Siriba is very opaque, it needs ventilating in full Judicial process that is open.
Accordingly, the following are the court orders:-
This application be certified as urgent.
The leave for the Applicant to apply for Judicial Review Order of CERTIORARI be and is hereby granted.
The leave for the Applicant to apply for Judicial Review Order of PROHIBITION prohibiting the 3rd Respondent from swearing in the 2nd Respondent as the 4th Respondent’s nominated member of Nyamira County Assembly.
That accordingly, the leave so do operate as a stay of implementation of the judgment, the order and/or decree emating from judgment of the Political Parties Disputes Tribunal delivered on 1st October, 2015, Naomi Bosibori Amenya vs Nyabiange Siriba & Another.
It is so ordered
Dated and delivered at Nyamira on this 22nd day of October 2015
C. B. NAGILLAH
JUDGE
In the presence of:
Nyamwoncha hold brief for Mogaka or the applicant
Ex-parte for the respondents
Mercy Court Clerk