[2013] KEHC 2925 (KLR)
The court found that granting a stay or referring the matter to the Chief Justice would amount to reviewing earlier orders without a formal application. Previous directions allowing the petition to proceed, subject to the outcome of the appeal, had not been vacated. The court held that respondents would not suffer...
Source-derived case information.
- Citation
- [2013] KEHC 2925 (KLR)
- Parties
- Applicant: Nuh Nassir Abdi; Respondent: Ali Wario; Respondent: Francis Runya (Returning Officer, Bura Constituency); Respondent: The Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Election Petition 6 of 2013
- Procedural Posture
- Election Petition / Interlocutory Application for Stay and Reference to Chief Justice; Mention for Directions
- Outcome
- Application for stay of proceedings disallowed; scrutiny and recount to proceed as previously directed.
- Legal Topics
- Stay of Proceedings, Jurisdictional Challenge, Scrutiny and Recount, Reference to Chief Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nuh Nassir Abdi
Applicant
Ali Wario
Respondent
Francis Runya (Returning Officer, Bura Constituency)
Respondent
The Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Election Petition / Interlocutory Application for Stay and Reference to Chief Justice; Mention for Directions
Legal Issues
- 1 Whether the court should stay proceedings pending the outcome of an appeal in a related petition.
- 2 Whether the matter should be referred to the Chief Justice to constitute a bench of three judges to hear the application to strike out the petition.
- 3 Whether the court should proceed with scrutiny and recount as previously directed.
Ratio Decidendi
The court found that granting a stay or referring the matter to the Chief Justice would amount to reviewing earlier orders without a formal application. Previous directions allowing the petition to proceed, subject to the outcome of the appeal, had not been vacated. The court held that respondents would not suffer prejudice, as jurisdictional objections could be raised at any stage. The absence of an order staying proceedings in this petition meant the court was not barred from proceeding. The court emphasized that it would only halt proceedings if it found it lacked jurisdiction, which had not been determined. Therefore, the scrutiny and recount process was to proceed as previously...
Court Disposition
Application for stay of proceedings disallowed; scrutiny and recount to proceed as previously directed.
Orders
- The process of scrutiny and recount of votes for Bura Constituency shall proceed as earlier directed before Hon. B. Ekhubi.
- The matter will be mentioned on 2nd July, 2013 before the Deputy Registrar at 9.00 a.m.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELECTION PETITION NUMBER 6 OF 2013
NUH NASSIR ABDI...................................................................................PETITIONER
VERSUS
1. ALI WARIO ….........................................................................1ST RESPONDENT
FRANCIS RUNYA(RETURNING
OFFICER, BURA CONSTITUENCY......................................2ND RESPONDENT
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION …..........................................3RD RESPONDENT
RULING
This matter was listed before me for a mention by the Deputy Registrar in order to vary part of the direction made by this court on 24th June, 2013 and replace Hon. S.K. Gacheru with Hon. B. Ekhubi to preside over the recount and scrutiny of the votes. No issue has been raised with respect to that matter. Ordinarily, the court does not deal with issues not property before it and specifically substantive issues on a date fixed for mention.
However, Mr. Balala has orally applied that either the court stays these proceedings awaiting the outcome of the Appeal arising from Petition Number 8 of 2013, or certifies that the matter is a proper matter for reference to the Honourable Chief Justice to constitute a bench of 3 Judges to hear the application seeking to strike out the petition which application is still pending. Mr. Balala is alternatively of the view that the court ought to hear the same application first.
Mr. Khagram has on his part associated himself with Mr. Balala's submission. Suffice to say that Mr. Wafula has opposed the oral application. I have, due to respect for counsel, considered the said submissions despite the fact that the matter is coming up for mention. On 23rd May 2013, I directed that the ruling delivered in Petition Number 4 of 2013 relating to the striking out of that Petition to apply to this Petition subject to the outcome of the intended appeal to the Court of Appeal. In that ruling I declined to strike out the same Petition. Those directions have not been vacated or set aside. Subsequently on 30th May, 2013 I directed that this matter proceeds subject to the same appeal. Again that direction has not been set aside. The parties have since taken directions with a view to the conduct of the recount, scrutiny and hearing of this petition.
It is my view that, to grant the orders sought herein would amount to review of the said earlier orders without an application to do so. It is argued that if this matter proceeds the Respondents will be prejudiced since they will be denied an opportunity to ventilate the issues in the pending application. With due respect I do not think so. The issue involved in the s said application is a jurisdictional issue and whereas the same ought to be raised at the earliest opportunity the law as I understand it is that the mere fact that the same is not determined at the outset does not bar a party from raising the same at any stage in the proceedings including at submissions stage.
On the issue of the declaration of Section 76 of the Elections Act, it is clear that by the time my learned brother Justice Ochieng made his decision, there were other decisions of the High Court which had declared the said section constitutional. To hold that Justice Ochieng's decision superseded the other decisions of the High Court would in my view go against the principle of concurrent jurisdictions. Apart from that Justice Ochieng declined to strike out the Petition and directed it to proceed. Although the proceedings in the said Petition have since been stayed there is no order staying proceedings in this Petition. This Court is only bound to lay down its tools once it finds that it has no jurisdiction which finding is yet to be made. This petition is fixed for hearing on 22nd July, 2013. I am informed that the Court of Appeal is due to deliver its decision on 25th July 2013. I do not see any serious prejudice that will be occasioned to the Respondents if the Petition proceeds. If on 25th July 2013 the Court of Appeal allows the appeal this court will be bound by that decision. If not, the hearing will proceed in the usual manner.
Accordingly, I direct that the process of scrutiny and recounts of votes for Bura Constituency shall proceed as earlier directed before Hon. B. Ekhubi. The matter will be mentioned on 2nd July, 2013 before the said Deputy Registrar at 9. 00 a.m. The application for stay of proceedings is in effect disallowed.
Dated at Mombasa this 1st Day of July 2013
G.V. ODUNGA
JUDGE
Delivered in the presence of
Mr. Wafula for Kilonzo Jnr. …...................................................................for Petitioner
Mr. Balala and Mr. Mohamed for …......................................................1st Respondent
Mr. Khagram and Ms. Kanabar for Mr. Nyamodi................2nd and 3rd Respondents