[2017] KEHC 3779 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JR APPLICATION NO. 400 OF 2017

REPUBLIC...............................................................................................................APPLICANT

VERSUS

GEORGE NDUNG’U KOIMBURI.................................................................1ST RESPONDENT

THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION...2ND RESPONDENT

FARMERS PARTY OF KENYA...................................................................3RD RESPONDENT

JUBILEE PARTY OF KENYA..................................................................INTERESTED PARTY

EX PARTE: ALICE NJOGU

JUDGMENT

1. The ex parte applicant, Alice Njogu, by her Motion dated 11th June 2017 seeks the judicial review orders of certiorari and prohibition against the respondents herein. The decision being challenged was made by the 2nd respondent on 13th April 2017 when the 1st respondent’s name was published in the Kenya Gazette of the said date as the candidate cleared by the 2nd respondent to vie for the parliamentary seat for Juja Constituency Kiambu on a Farmers Party ticket. She would like the name of the 1st respondent removed as a candidate.

2. The ex parte applicant’s case is that the 1st respondent had participated in the party primaries of the interested party and lost, whereupon he ‘party-hopped’ to the Farmers Party. She contends that ‘party-hopping’ was permissible only if done 120 days before the general election. She avers that the interested party’s nominations were conducted towards the end of April 2017; she has annexed copy of a poster bearing the image and name of the 1st respondent indicating that the interested party’s nominations for Juja were to be conducted on 21st April 2017. She submits that to avoid being caught up in the 120 days rule, the 1st respondent ought to have changed political parties by 8th April 2017. She asserts that the 1st respondent was not validly nominated as such to contest under the Farmers Party umbrella.

3. There is an affidavit of service on record indicating that the Motion was served on all the respondents. Only the 2nd respondent responded to the application, through an affidavit sworn by one its officers, Douglas Bargoret, on 19th July 2017. He cited Article 88 of the Constitution to argue that the ex parte applicant ought to have moved the 2nd respondent’s dispute resolution committee appropriately, arguing that the court in The Speaker of the National Assembly vs. Njenga Karume (2008) 1 KLR 425 had held that the mechanisms envisaged in that provision ought to be exhausted first before the matter goes to court.

4. Article 88(4)(e) of the Constitution states as follows regarding the 2nd respondent –

‘The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established under this Constitution, and any other election prescribed by an Act of Parliament and, in particular, for –

(a) …

(b) …

(c) …

(d) …

(e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of elections results …

(f) …’

5. The constitutional provision quoted above is given effect by section 74 of the Elections Act, No. 24 of 2011, which states as follows –

‘(1) Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of results.

(2) ...’

6. The Court of Appeal in the decision cited by the 2nd respondent, Speaker of the National Assembly vs. James Njenga Karume (1992) eKLR, said as follows-

‘In my view there is considerable merit in the submission that where there is a clear procedure of redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe … that order 53 of the Civil Procedure Rules cannot oust clear constitutional and procedural provisions.’

7. I have carefully perused through the application, the statutory statement and the affidavit by the ex parte applicant, and I have noted that she did not file any complaint with the 2nd respondent in keeping with the constitutional and statutory provisions cited above. Her case should therefore fall by the wayside going by the tenor of Speaker of the National Assembly vs. James Njenga Karume.

8. I have also noted that the ex parte applicant did not exhibit any proof from the Registrar of Political Parties regarding the 1st respondent’s status as a member of the interested party and the 3rd respondent. There is nothing to indicate the stage at which the 1st respondent allegedly resigned from the interested party and became a member of the 3rd respondent, to support the claim that the move happened less the 120 days allowed in law. All that the ex parte applicant is relying on is copy of a poster ostensibly emanating from the 1st respondent with the date of 21st April 2017 emblazoned on it. The authenticity of the alleged poster has not been established.

9. In view of everything that I have said so far, I am moved to find that the Motion before me, dated 11th June 2017, is wholly without merit, and I hereby dismiss the same with costs.

DATED, SIGNED and DELIVERED at NAIROBI this 25TH DAY OF JULY, 2017.

W. MUSYOKA

JUDGE