[2013] KEHC 5173 (KLR)
The court found that the IEBC Disputes Tribunal failed to observe due process by denying the applicant the necessary nomination form (Form 16) and then penalizing him for not submitting it. The Tribunal's actions were deemed biased and intentionally designed to intimidate and exclude the applicant from the electoral...
Source-derived case information.
- Citation
- [2013] KEHC 5173 (KLR)
- Parties
- Applicant: Republic; Respondent: Independent Elections & Boundaries Commission; Respondent: Independent Elections & Boundaries Commission Disputes Tribunal; Applicant: Yussuf Ooro Odongo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 49 of 2013
- Procedural Posture
- Judicial Review / Ruling on Notice of Motion for Orders of Certiorari and Mandamus
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Right to Fair Administrative Action, Electoral Nomination Disputes, Due Process, Judicial Review Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Independent Elections & Boundaries Commission
Respondent
Independent Elections & Boundaries Commission Disputes Tribunal
Respondent
Yussuf Ooro Odongo
Applicant
Procedural Posture
Judicial Review / Ruling on Notice of Motion for Orders of Certiorari and Mandamus
Legal Issues
- 1 Whether the IEBC Disputes Tribunal denied the applicant due process by refusing to provide the required nomination form and then penalizing him for not lodging it.
- 2 Whether the Tribunal's decision to dismiss the applicant's complaint was biased and contrary to constitutional rights.
- 3 Whether the court should quash the Tribunal's decision and compel the IEBC to include the applicant's name on the ballot.
Ratio Decidendi
The court found that the IEBC Disputes Tribunal failed to observe due process by denying the applicant the necessary nomination form (Form 16) and then penalizing him for not submitting it. The Tribunal's actions were deemed biased and intentionally designed to intimidate and exclude the applicant from the electoral process. The court held that the complaint was about the process rather than the merits, and that the threshold for judicial interference was met due to breach of fundamental rights. The decision of the Tribunal was quashed, and the IEBC was compelled to include the applicant's name on the ballot for the Senate seat for Siaya County.
Court Disposition
application allowed
Orders
- The decision of the IEBC Disputes Tribunal is quashed.
- The IEBC is ordered and compelled to put the name of the applicant in the ballot papers as an aspirant for the Senate seat for Siaya County on a TNA ticket for the 4th March 2013 General Elections.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Judicial Review 49 of 2013 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif";} </style> <![endif]
IN THE MATTER OF AN APPLICATION BY YUSSUF OORO ODONGO FOR LEAVE TO APPLY FOR JUDICIAL REVIEW FOR ORDERS OF CERTIORARI
AND
IN THE MATTER OF ARTICLES 98 (3) AND 99 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE INDEPENDENT ELECTIONS
& BOUNDARIES COMMISSION
BETWEEN
REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT
- VERSUS -
INDEPENDENT ELECTIONS & BOUNDARIES COMMISSION:::::::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT
INDEPENDENT ELECTIONS & BOUNDARIES COMMISSION DISPUTES TRIBUNAL::::::2ND RESPONDENT
AND
EX-PARTE - YUSSUF OORO ODONGO
R U L I N G
1. By a Notice of Motion dated 12th February 2013 the Applicant seeks among other orders of Mandamus to issue compelling IEBC to put the name of the Applicant in the ballot papers as an aspirant for the Senate seat for Siaya County for the 4th March 2013 general elections.
2. The Applicant YUSSUF OORO ODONGO, a member of The National Alliance Party (TNA) alleges that he was nominated to vie for the seat of Senator by TNA party in Siaya County on the 18th January 2013. The IEBC declined to give the Applicant Form 16 which was the form required to be filed as Nomination Form for a Senator.
3. When the Applicant lodged a complaint with the IEBC, the IEBC mandated the same Commissioners who had earlier on refused to provide the Applicant with Form 16 to resolve the issue.
4. The IEBC Commissioners considered the complaint and reached the decision as follows:-
“The complaint is hereby dismissed for failure by the complainant to lodge the correct Nomination Form for the Senate position.”
5. The IEBC Tribunal did not consider the dispute within the mandate of the law. The proceedings are scanty, if any or at all. The decision is spurious, heavy handed and arrogant.
6. The issue to ask is how can a Tribunal who is expected to provide Form 16, refuse to do that and then penalize the Applicant for failure to lodge the correct Nomination Form for the Senate Position? In any event, the Applicant does not need to lodge a particular form. The Applicant’s duty as a layman is to state his case the way he may understand it. It is then the business of the IEBC Tribunal to fit the complaints to a particular technical form. A technical procedure should not be used to deny a contestant his rights under the Constitution.
7. The IEBC team cannot purport to hold brief for some party or particular contestants by removing or limiting political competition. In my view the IEBC Disputes Tribunal showed bias. The process of resolving the dispute was intentionally intended to intimidate the Applicant. The procedure was faulty and biased, and the decision reached was pre-meditated. If that is so, as I hold it to be, that decision cannot stand.
8. Having considered the material on record and the decision reached by the Tribunal, I am of the view that the complaint was on the process leading to the decision rather than on the merits thereof and so it meets the interference threshold by a court investigating breach of fundamental rights and freedoms. Due process was not followed. There can be no due process when the Tribunal’s first act was to deny the Applicant Form 16 which initiates the process. Whether or not there has been a breach of a right to fair trial depends on the circumstances of each case. See KAMLESH MANSUKLAL PATTNI & ANOTHER – VS – REPUBLIC NAIROBI HCMA NO. 322 OF 1999. I am satisfied that in this case there was unfair process and denial of the due process.
9. In the upshot, I make orders as follows:-
a.I quash the decision of the IEBC Disputes Tribunal aforesaid and order direct and compel the IEBC to put the name of the Petitioner/Applicant in the ballot papers as an aspirant for the Senate seat for Siaya County on a TANA Ticket for the 4th march General Elections.
b.No order on costs.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 15TH DAY OF FEBRUARY 2013
E. K. O. OGOLA
JUDGE
PRESENT:
Mutunga for the Applicant
Nyamodi for the Respondents
Teresia – Court Clerk