[2022] KEHC 10129 (KLR)

Openda v Independent Electoral and Boundaries Commission & another (Judicial Review E003 of 2022) [2022] KEHC 10129 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10129 (KLR)

Republic of Kenya

In the High Court at Nyamira

Judicial Review E003 of 2022

FA Ochieng, J

July 8, 2022

Between

Zachariah Mogaka Openda

Applicant

and

Independent Electoral and Boundaries Commission

1st Respondent

Returning Officer, North Mugirango Constitutency

2nd Respondent

Ruling

The application before me is dated 28th June 2022. It is an application for an Order of Certiorari, to quash the decision of the IEBC’s Dispute Resolution Committee, dated 16th June 2022. 1. The Committee had upheld the decision which the Returning Officer, North Mugirango Constituency had rendered on 2nd June 2022.

.2The second relief sought by the Applicant, ZAcharia Mogaka Openda, was an Order of Mandamus, to direct the IEBC to clear and to register him as the Jubilee Party Candidate for the Bomwagamo County Assembly Ward, in the General Election scheduled to be held in August 2022.

3. Prior to throwing his hat in the political ring, the Applicant worked at the Insurance Regulatory Authority.

4. It is the Applicant’s case that he worked until 8th February 2022: -“…. when he took an early retirement, to enable him seek an elective office. He was due to retire on May 2022 upon attaining the mandatory age of 60 years.”

5. The 2nd Respondent refused to clear the Applicant when he presented himself for clearance on 2nd June 2022. The reason given by the 2nd Respondent for not giving clearance to the Applicant was that the Applicant had not resigned from Public Office before 9th February 2022.

6. Aggrieved by the decision, the Applicant moved the IEBC Dispute Resolution Committee. But the said Committee upheld the decision of the Returning Officer.

7. This Court has been called upon to review the Committee’s decision, and to have it quashed.

8. On the one hand, the Applicant insists that he had resigned on 8th February 2022, whilst, on the other hand the 2nd Respondent states that the Applicant did not resign on that date.

9. When canvassing the application, the Applicant urged the Court to take into account the test of proportionality, which would to a greater intensity of review, as compared to the more traditional grounds which refrained the court from inquiring into the merits of the case.

10. According to the Applicant, the Respondents had denied him a fair and impartial opportunity to be heard, by failing to consider the evidence which he had tendered.

11. He said that the Committee failed to appreciate the difference between resignation and retirement. In his considered opinion, resignation takes effect on the date appointed by the employee, whilst retirement was dependent upon the discretion of the employer.

12. In answer to the application, the 1st Respondent told the Court that the Applicant never placed before the Committee, the letter dated 8th February 2022. If that was factually accurate, that would imply that the Committee cannot have ignored something which was provided to it.

13. In its decision, the IEBC Dispute Resolution Committee indicated that the Applicant had attached two letters to support his case. The said two letters were dated 2nd June 2021 and 10th February 2022.

14. The Committee made a finding in the following terms: –“Both the Complainant and the Returning Officer annexed the Insurance Regulatory Authority letter dated 10th February, 2022, in response to the Complainant’s letter of 8th February, 2022 which communicated that the Complainant’s early retirement would commence on 1st April 2022. For reasons best known to him, the Complainant did not attach the letter dated 8th February 2022. ”

15. As I have already said, if the Applicant did not attach the letter dated 8th February 2022, to his complaint, there would have been no way that the Committee could have given consideration to its contents.

16. However, I will presume that the Applicant did provide the letter to the Committee. The said letter bears the following heading: -"REF: RETIREMENT FROM THE SERVICE.”

17. Thus it is the Applicant who made a conscious decision to make reference to his retirement from the service.

18. When responding to the Applicant’s letter, his employer said, inter alia: -“We would like to inform you that Management has accepted your notice of intent to proceed for early retirement starting 1st April 2022. Your last working day will therefore be 31st March 2022. ”

19. Considering that the employer’s letter is dated 10th February, 2022, I hold the considered opinion that if the Applicant deemed the employer to have misunderstood his letter dated 8th February 2022, the Applicant should have promptly written back to the employer to clarify that he had already resigned.

20. From the employer’s letter dated 10th February 2022, it is clear that the employer considered the Applicant to continue being their employee until 31st March 2022. Therefore, it is not just the Committee which held the view that the Applicant continued being an employee in the public service beyond 8th February 2022.

21. At paragraph 13 of his written submissions, the Applicant stated that he had resigned from the office on 8th February 2022. However, by his letter dated 8th February 2022, the Applicant said that his resignation from service was effective as from 9th February 2022.

22. In effect, even the Applicant is uncertain about the date of his resignation. I find that the Applicant did not adduce conclusive proof of his alleged resignation on 8th February 2022. He was well aware, from as early as 10th February 2022, that even his employer had understood him to remain in employment until 31st March 2022. He failed to clear-up that misunderstanding.

23. Regrettably therefore, the Applicant cannot blame the Committee for reaching a wrong determination, whereas it was the Applicant who presented a blurred case.

24. In the result, I find no merit in the application dated 28th June 2022. It is therefore dismissed.

25. Each party will meet his own costs.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 8TH DAY OF JULY 2022. FRED A. OCHIENGJUDGE