[2013] KEHC 5191 (KLR)
The court dismissed the petition on the ground that Tom Mboya Ndege, whose name appeared on the ODM nomination list submitted to the IEBC, was not joined as a party to the proceedings nor served with court process. Since he was on the list, he had acquired a right that could not be taken away arbitrarily or without...
Source-derived case information.
- Citation
- [2013] KEHC 5191 (KLR)
- Parties
- Petitioner: Peter Edick Omondi Anyango; Respondent: The Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 45 of 2013
- Procedural Posture
- Constitutional Petition / Final Judgment
- Outcome
- petition dismissed
- Judges
- DAS Majanja, CC Kipkorir, GV Odunga
- Legal Topics
- Right to Participate in Elections, Nomination Disputes, Party List Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Edick Omondi Anyango
Petitioner
The Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Constitutional Petition / Final Judgment
Legal Issues
- 1 Whether the petitioner is the duly nominated candidate of the Orange Democratic Movement (ODM) for Nyatike Constituency.
- 2 Whether the Independent Electoral and Boundaries Commission (IEBC) can be restrained from accepting nomination certificates for other candidates based on the ODM list.
- 3 Whether the rights of a person named on the submitted list can be affected without being joined as a party to the proceedings.
Ratio Decidendi
The court dismissed the petition on the ground that Tom Mboya Ndege, whose name appeared on the ODM nomination list submitted to the IEBC, was not joined as a party to the proceedings nor served with court process. Since he was on the list, he had acquired a right that could not be taken away arbitrarily or without being heard. The court found it unnecessary to determine whether the list presented to the IEBC could be amended, as the absence of a necessary party was fatal to the petition. The principle of natural justice required that all parties whose rights may be affected by the outcome be given an opportunity to be heard.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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PETER EDICK OMONDI ANYANGO ......................................................................PETITIONER
AND
THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION..........RESPONDENT
JUDGMENT
1. On 31st January 2013, we dismissed the petition with no orders as to costs.
2. By a petition dated 30th January 2013, the petitioner seeks the following orders;
(a)That a declaration be issued to declare that the Hon Omondi Anyanga is the duly nominated candidate of the Orange Democratic Movement (ODM) for Nyatike Constituency in Migori County.
(b)That an order of permanent injunction be issued to restrain the respondent its Constituency Electoral Coordinator Nyatike Constituency/Returning Officer, its officials, employees and agents from receiving nomination certificate for Tom Mboya Odege or any other person purporting to have a Nomination Certificate issued by the Orange Democratic Movement (ODM) party.
(c)That an order of permanent injunction be issued to restrain the respondent its Constituency Electoral Coordinator Nyatike Constituency/Returning Officer, its officials, employees and agents to conduct nomination for Nyatike Constituency in accordance with the list of candidates forwarded to its chairman to the Orange Democratic Movement officials vide a letter dated 21st January 2013 showing inter alia, that the petitioner Hon Peter Edick Omondi Anyanga is the duly nominated candidate for Nyatike Constituency.
(d)That the costs of this petition be borne by the respondents.
3. The petitioner contends that he is the holder of a nomination certificate from ODM entitling him to contest the Nyatike Constituency National Assembly seat. However the list submitted by ODM contained another name besides that of the petitioner. He therefore avers that his right to contest cannot be taken away arbitrarily.
4. The ODM party concedes that the petitioner is the party’s nominees and that the list submitted by the party on 21st January 2013 contained errors that the IEBC has refused to allow correction.
5. We dismissed the petition because Mr Tom Mboya Ndege, the party who is alleged to be on the list was not joined to these proceedings nor served with court process. As he was on the list, he has acquired a right that cannot be taken away arbitrarily. In the circumstances it was not necessary to determine whether the list presented to the IEBC by the party can be amended.
DatedandDelivered at Nairobithis 5th February 2013
D.S. MAJANJA
JUDGE
W. KORIR
JUDGE
G. V. ODUNGA
JUDGE