[2017] KEHC 9229 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

JUDICIAL REVIEW DIVISION

MISC. APPLICATION NO. 431 OF 2017

IN THE MATTER OF AN APPLICATION BY RAMLA MAALIM MOHAMED

FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND MANDAMUS AND PROHIBITION

AND

IN THE MATTER OF ARTICLES 1, 2(2 (3), 27, 28, 38, 47, 48, 50(1), 88(4)(d) (e) & (f) AND 88(5) OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF INFRINGEMENT F CONSTITUTIONAL RIGHTS

AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015

BETWEEN

RAMLA MAALIM MOHAMUD..............................................................................APPLICANT

VERSUS

THE RETURNING OFFICER, NAIROBI COUNTY......................................1ST RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION......2ND RESPONDENT

RULING

[1]Pursuant to Sections 8 and 9 of the Law Reform Act, Chapter 26 of the Laws of Kenya, Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010 and the inherent power of the Court, the Applicant, Ramla Maalim Mohamud moved the Court vide her Chamber Summons application dated 4 July 2017 for the following orders that:

[a] Spent

[b] Leave be granted to the Applicant to apply for judicial review orders of Certiorariquashing any decision made by the Respondents to invalidate her nomination papers;

[c] Leave be granted to the Applicant to apply for judicial review orders of Mandamus directing and compelling the 2nd Respondent to accept the Applicant's nomination papers and to include/recognize her as a candidate for the position of Senator, Nairobi County;

[d] Leave be granted to the Applicant to apply for judicial review orders of Prohibitiondirecting the 2nd Respondent not to print or in any way preparing ballot papers or conducting elections for the position of Senator, Nairobi County;

[e] Leave be granted to the Applicant to apply for the judicial review orders of Mandamus directing and compelling the 2nd Respondent to include the Applicant as a contestant for the position of Senator, Nairobi County;

[f] That the leave sought do operate as stay against any decision made to print or in any way prepare ballot papers or conduct elections for the position of Senator, Nairobi County, in exclusion of the Applicant, pending the hearing and determination of this suit;

[f] That the costs of this application be granted to the Applicant.

[2] The grounds relied on by the Applicant in support of the application have been set out in the application and the Supporting Affidavit, namely: that the Applicant was duly nominated by her party, Forum for Restoration of Democracy - Kenya (Ford-Kenya) to vie for the position of Senator, Nairobi County, and was accordingly issued with a Nomination Certificate on 2 May 2017; and that she presented her nomination papers to the 1st Respondent on 29 May 2017 at Kasarani, but was turned away for reasons that she had her husband as her proposer, when her husband was not a member of Ford-Kenya.

[3] She averred that she tried to explain to the 1st Respondent that her proposer was not her husband, and was a member of Ford-Kenya, but the 1st Respondent did not care to listen. In the premises, the 1st Respondent did not check her nomination papers or show any interest but appeared predetermined not to clear her. Feeling aggrieved by the 1st Respondent's decision, she appealed to the 2nd Respondent's Dispute Resolution Committee, but her complaint was dismissed, thereby denying her the opportunity of contesting in the forthcoming General Elections.

[4] The Respondents opposed the application. A Replying Affidavit to that effect, sworn by the 1st Respondent, was filed herein on 12 July 2017 on behalf of the Respondents, wherein the 1st Respondent averred that the Applicant appeared before him on 28 May 2017 to present her nomination papers; and that upon scrutinizing her documents, she established that her proposer, one Mohamed Abdi Abukar, was not a member of her party. He accordingly advised the Applicant to avail a suitable proposer in replacement by 29 May 2017; but that the Applicant appeared unable to do so within the stipulated timelines. Instead she returned on 29 May 2017 at about 5. 20 p.m. after the clearance exercise had closed; so that, all he could do was to endorse the Applicant's nomination papers as invalid because the Applicant was time-barred.

[5] The foregoing being the summary of the parties' respective perspectives, the issue arising for determination at this stage is whether the Applicant is entitled to leave as sought; and if so, whether that leave should operate as stay pending the hearing and determination of the substantive application. In Republic vs. County Council of Kwale & Another, Ex parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 it was heldthus:

“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in-depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter parteshearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.

[6]There is no disputation that the Applicant had been nominated by her party, Ford-Kenya to vie for the position of Senator, for the County of Nairobi and was accordingly issued with a Nomination Certificate marked RMM1 herein. She thereafter appeared before the 1st Respondent and presented her nomination papers for clearance, but was not cleared. Although she did not specifically indicate in her application which decision she seeks reviewed, it is her contention that her papers were rejected because her proposer was her husband, and that he was not a member of her party at the time. She relied on the Nomination Application form marked RMM2, dated 27 May 2017 which was evidently presented to the Returning Officer on 29 May 2017. The endorsement thereon shows that the nomination was invalidated because the Applicant was time-barred. In that document the name of the Proposer is indicated as Anthony S. Kisiangani. There being no indication thereon that the proposer was the Applicant's husband or that he was not a member of the Applicant's party; it is manifest there is a variance, in that regard, between the grounds relied on by the Applicant and her documents.

[7] It is disconcerting that the Applicant chose to conceal critical information to the effect that she had earlier on 28 May 2017, appeared before the 1st Respondent and presented a Nomination Application Form dated 27 May 2017, which bears the name of one Mohamed Abdi Abukar as the Proposer, and Anthony S. Kisiangani as the Seconder. That document was exhibited by the Respondent and it shows the endorsement of the 1st Respondent to be simply that the Proposer was not registered as a member of Ford-Kenya. Accordingly, it cannot be said, in the circumstances, that the Applicant has made out a prima facie case to warrant the issuance of leave to apply for Judicial Review. Needless to say that the Applicant's Complaint to the 2nd Respondent's Dispute Resolution Committee was not about the illegality, unreasonableness or procedural impropriety; but about the merit and the reason for the Returning Officer's invalidation of the Applicant's nomination documents.

[8] For the foregoing reasons, I take the view that the Applicant has not shown an arguable case worth proceeding to the next level of investigation for purposes of judicial review. Accordingly, I would dismiss the Chamber Summons application dated 4 July 2017 with an order that each party bears own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JULY, 2017

OLGA SEWE

JUDGE