[2013] KEHC 5192 (KLR)
The court held that while the IEBC has the mandate to resolve nomination disputes, the issue of citizenship, being a fundamental constitutional right and a qualification for elective office, cannot be determined summarily or on the basis of insufficient evidence. The court found that the IEBC's decision to revoke...
Source-derived case information.
- Citation
- [2013] KEHC 5192 (KLR)
- Parties
- Petitioner: Nassir Mohamed Dolal; Respondent: The Independent Electoral and Boundaries Commission; Respondent: The Returning Officer Garissa Township Constituency; Respondent: Orange Democratic Movement (ODM); Respondent: Omar Sheikh Ali; Interested Party: Hon Hassan Ali Joho; Interested Party: Hazel Katana
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 44 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition_allowed
- Judges
- DAS Majanja, CC Kipkorir, GV Odunga
- Legal Topics
- Citizenship Qualification, Election Nominations, Fundamental Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nassir Mohamed Dolal
Petitioner
The Independent Electoral and Boundaries Commission
Respondent
The Returning Officer Garissa Township Constituency
Respondent
Orange Democratic Movement (ODM)
Respondent
Omar Sheikh Ali
Respondent
Hon Hassan Ali Joho
Interested Party
Hazel Katana
Interested Party
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the IEBC could revoke a nomination certificate on the basis of alleged dual citizenship without proper determination of citizenship status.
- 2 Whether the issue of citizenship as a qualification for nomination can be determined by the IEBC or should be addressed at the petition stage under the Constitution and the Citizenship and Immigration Act.
Ratio Decidendi
The court held that while the IEBC has the mandate to resolve nomination disputes, the issue of citizenship, being a fundamental constitutional right and a qualification for elective office, cannot be determined summarily or on the basis of insufficient evidence. The court found that the IEBC's decision to revoke the petitioner's nomination certificate on the ground of alleged dual citizenship was improper, as the determination of citizenship status requires adherence to the specific provisions of the Constitution and the Citizenship and Immigration Act. The court therefore set aside the IEBC's decision and allowed the petitioner to present his nomination papers to the returning officer.
Court Disposition
petition_allowed
Orders
- The decision of IEBC dated 28th January 2013 in IEBC/NDRC/41/2013 is set aside.
- The petitioner is at liberty to present nomination papers to the respective returning officer.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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NASSIR MOHAMED DOLAL .........................................................................................PETITIONER
AND
THE INDEPENDENT ELECTORALAND BOUNDARIES COMMISSION.........1ST RESPONDENT
THE RETUNING OFFICERGARISSA TOWNSHIP CONSTITUENCY ............2ND RESPONDENT
ORANGE DEMOCRATIC MOVEMENT (ODM).................................................3RD RESPONDENT
OMAR SHEIKH ALI .............................................................................................4TH RESPONDENT
AND
HON HASSAN ALI JOHO .......................................................................1ST INTERESTED PARTY
HAZEL KATANA ......................................................................................2ND INTERESTED PARTY
JUDGMENT
1. After hearing the petition on 31st January 2013, we made the following order, “The petition is allowed and the decision of IEBC dated 28th January 2013 in IEBC/NDRC/41/2013 be and is hereby set aside. The petition shall be at liberty to present nomination papers to the respective returning officer. There shall be no order as to costs.” We now proffer our decision.
2. The petition was issued with a direct nomination for the National Assembly seat for Garissa Township Constituency by the Orange Democratic Movement. The 4th respondent then filed a complaint with the IEBC alleging that no primaries were held and that he was not qualified to contest the position by virtue of being a citizen of the United States.
3. After hearing the matter, the Committee concluded that revoked nomination certificate on the round that the petitioner was a dual citizen.
4. Although, the IEBC was entitled to deal with the dispute before it, we are of the view that the issue of citizenship being a fundamental right under the Constitution could not be determined in the manner and on the basis of inclusion evidence.
5. Since the issue of citizenship goes to qualification of a candidate, it may be raised at the petition stage and in the light of the specific provisions of the Citizenship and Immigration Act, we set aside the decision of the IEBC.
DatedandDelivered at Nairobithis 5th February 2013
D.S. MAJANJA
JUDGE
W. KORIR
JUDGE
G. V. ODUNGA
JUDGE