[2013] KEHC 5172 (KLR)
The court held that it could not interfere with the IEBC's actions because the IEBC had not made any independent decision that was subject to review; it had merely complied with a High Court order. The applicant's grievance was with the High Court's earlier order, not with any act or omission by the IEBC....
Source-derived case information.
- Citation
- [2013] KEHC 5172 (KLR)
- Parties
- Applicant: Republic; Respondent: Independent Elections & Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 55 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Judicial Review Orders
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Judicial Review, Election Nominations, Certiorari, Mandamus, Prohibition, Party Nomination Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Independent Elections & Boundaries Commission
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Judicial Review Orders
Legal Issues
- 1 Whether the court has jurisdiction to review the IEBC's decision regarding party nominations for Senate member, Trans Nzoia County.
- 2 Whether the IEBC made a reviewable decision affecting the applicant's rights.
- 3 Whether the failure to join Edward Katama Ngeiywa as a party is fatal to the application.
Ratio Decidendi
The court held that it could not interfere with the IEBC's actions because the IEBC had not made any independent decision that was subject to review; it had merely complied with a High Court order. The applicant's grievance was with the High Court's earlier order, not with any act or omission by the IEBC. Furthermore, the failure to join Edward Katama Ngeiywa, whose nomination would be directly affected by the orders sought, was fatal to the application. The court emphasized that a right already acquired by a party on the IEBC list cannot be taken away arbitrarily or without due process. Consequently, the application was dismissed for lack of merit and for non-joinder of a necessary party.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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IN THE MATTER OF:THE CONSTITUTION OF THE REPUBLIC OF KENYA
AND
IN THE MATTER OF:THE CONSTITUTION OF KENYA ARTICLE 23 (3) (F)
AND
IN THE MATTER OF:AN APPLICATION FOR LEAVE TO FILE JUDICIAL REVIEW PROCEEDINGS AGAINST THE RESPONDENTS.
AND
IN THE MATTER OF:THE LAW REFORM ACT CHAPTER 26 – LAWS OF KENYA SECTIONS 8 AND 9
AND
IN THE MATTER OF:THE ELECTION ACT NO. 24 OF 2011 LAWS OF KENYA AND THE RULES MADE THEREUNDER
AND
IN THE MATTER OF:THE POLITICAL PARTIES ACT NO. 11 OF 2011 LAWS OF KENYA AND THE RULES MADE THEREUNDER
AND
IN THE MATTER OF:THE INDEPENDENT ELECTIONS & BOUNDARIES COMMISSION
AND
IN THE MATTER OF:THE UNITED REPUBLICAN PARTY (URP) NOMINATIONS FOR CANDIDATE FOR SENATE MEMBER, TRANS NZOIA COUNTY
BETWEEN
REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT
- VERSUS -
INDEPENDENT ELECTIONS& BOUNDARIES COMMISSION :::::::::RESPONDENT
R U L I N G
1. The Notice of Motion before the court is dated 13th February 2013 and seeks the following orders:-
1)The court be pleased to grant:-
a)An order of certiorari to remove into this Honourable Court and quash the decision delivered by the Respondent through the County Returning Officer Trans Nzoia County to accept/register and/or enlist EDWARD KATAMA NGEIYWA as the nominee of the United Republic Party for the position of Senate member for Trans Nzoia County and issue him with the relevant clearance certificate.
b)An order of mandamus compelling the Respondent to immediately receive and receipt the Applicant herein STANLEY KILIMO KORE as the nominee of URP for the position of Senate member for Trans Nzoia County and issue him with the relevant clearance certificate and ensure that the Applicant is on the March 4th General Election ballot.
c)An order of prohibition directed at the Respondent prohibiting it from issuing and/or gazetting any other candidate other than STANLEY KILIMO KORE on the URP party ticket to vie for the Trans Nzoia County Senate member seat on the URP Party Ticket.
d)Costs.
2. The Petitioner contends that he is a member of URP and was duly nominated to contest for the position of County Assembly Representative for Senate Member for Trans Nzoia County. The URP wrote a letter on 4th January 2013 to the IEBC confirming the nomination of the Applicant.
3. Unknown to the Applicant a Petition Number 2 of 2013 had been lodged at the Kitale High Court against his nomination by Edward Katama Ngeiywa who had participated in the UPR nominations and came second. In its Ruling on the matter the High Court temporarily restrained the IEBC from receiving any nomination papers issued by the URP Party to the 1st Respondent and/or to any other party other than Edward Katama Ngeiywa until inter-partes hearing on 11th February 2013.
4. The Applicant alleges that he was never privy to the said order and that he was never served with the order. Those orders were eventually withdrawn and by the time the Applicant became aware of them it was too late as IEBC had already accepted the nomination of Edward Katama Ngeiywa. The current application asks this court to reverse the order of IEBC.
5. I have considered the application and opposing submissions. The jurisdiction of this court over IEBC is restricted to looking at the process, and not the merit of IEBC decisions. In the particular case before the court there are two reasons militating against interference by this court in IEBC decision.
6. Firstly, IEBC is the innocent party in this matter. It has not made any decision which has been placed before the court for scrutiny. The alleged decision which “confused’ and ‘misled’ the Applicant was a High Court decision. The Applicant is not complaining of any IEBC decision which has caused him injury and which needs to be reviewed.
7. Secondly, Mr. Edward Katama Ngeiywa, the Party to be dispossessed of his nomination if this application were to succeed has not been joined to these proceedings and is unaware of the same. He is on the IEBC list and has acquired a right that cannot be taken away arbitrarily. SeePetition Number 45 of 2013 – PETER EDICK OMONDI ANYANGA – VS – IEBC.
8. On the above grounds I dismiss the application with no orders as to costs.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 19TH DAY OF FEBRUARY 2013
E. K. O. OGOLA
JUDGE
PRESENT:
Ndegwa for the Applicant
M/s Mbugu Respondent
Teresia – Court Clerk