[2017] KEHC 9231 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

JUDICIAL REVIEW NO. 385 OF 2017

IN THE MATTER OF AN APPLICATION

FOR LEAVE TO INSTITUTE PROCEEDINGS FOR CLEARANCE AS AN INDEPENDENT CANDIDATE FOR 2017 GENERAL ELECTIONS

BETWEEN

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

AND

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION.....RESPONDENT

EX PARTE.................................................................................FRANKLINE NJERU NYAGA

RULING

[1]The ex parte Applicant, Frankline Njeru Nyaga, moved the Court vide the Chamber Summons dated 23 June 2017, seeking leave of the Court to apply for any order or relief befitting the circumstances of his case; and for orders restraining the Respondent from gazetting the list of candidates for the forthcoming August 8, 2017 General Elections pending the hearing and determination of his application. It was further his prayer that the leave aforementioned do operate as stay of the Respondent's decision by which his Complaint was dismissed. The application was premised on the following grounds:

[a] That the Respondent is an independent Commission with the mandate to register the Applicant as a candidate for the General Elections;

[b] That he complied fully with the Respondent's requirement for clearance as a candidate for the elective position of Member of County Assembly for Mwiki Ward;

[c] That unless the Respondent was compelled to issue him with a Clearance Certificate he would be locked out of the General Elections as an aspirant, thereby violating his democratic rights.

[2]The application was supported by the Applicant's affidavit annexed thereto, sworn on 23 June 2017. It was averred therein by the Applicant that he was duly nominated to vie for the position of Member of County Assembly as a Farmers' Party candidate, having met all the requisite conditions. He accordingly presented his nomination papers on 31 May 2017at Ruiru, but was told that his seconder, one Cyrus Mwangi Jethro, was identified to be a registered voter in Nairobi and not in Mwiki Ward. He further stated that he was thus constrained to look for another registered voter within Mwiki Ward, namely Jediel Kiriinya Mucheke, to sign his nomination documents as a seconder and now requires an order of the Court to direct the Respondent to accept his papers.

[3]The Respondent opposed the application by way of a Preliminary Objection, contending that:

[a] The application is fatally defective, frivolous and vexatious as it offends the mandatory provisions of Order 53 of the Civil Procedure Rules, 2010.

[b] Order 53 Rule 2 provides that an application for leave to commence Judicial Review be made by way of Chamber Summons accompanied by a Statement setting out the name and description of the Applicant, the relief sought and the ground on which it is sought; and be supported by an affidavit verifying the facts relied on.

[c] No orders for Judicial Review had been sought by the Applicant to warrant the grant of leave.

[4]In arguing the Respondent's case in support of the Preliminary Objection, Learned Counsel, Ms. Okimaru, submitted that since Rule 2 of Order 53, Civil Procedure Rules, is mandatory, failure to comply therewith cannot be cured by Article 159 of the Constitution. She relied on the case of Susan Gacheri Kithinji vs. OCPD, Dadaab and Another [2016] eKLR in urging the Court to accordingly strike out the Applicant's Chamber Summons dated 23 June 2017.

[5]The Applicant on his part submitted that the is a layman, not well-versed in matters legal; and that in his own view, the application is good enough for a man of his level of education and exposure. He added that he has a constitutional right to present his grievance before the Court and to be accorded a fair hearing. He accordingly urged the Court not to dismiss his application on technicalities, but to give him an opportunity to be heard and for a determination to be made on the merits of the case.

[6]The Preliminary Objection is predicated on Rule 1 of Order 53 of the Civil Procedure Rules, which stipulates that:

"(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.

(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on."

[7]It is plain therefore that that provision is couched in peremptory terms; and accordingly, it was imperative for the Applicant to comply therewith by filing, along with his Chamber Summons application, a Statutory Statement setting the name and description of the applicant, the relief sought and the grounds on which it is sought, and a Verifying Affidavit verifying the facts relied on herein. There is no dispute that the Applicant did not do so.

[8]I note that the Applicant pitched an argument for the invocation of Article 159(2)(d) of the Constitution, for the matter to be determined on the basis of substantive justice as opposed to technicalities. It is however now trite that it is not in every case that Article 159(2)(d) comes to the aid of litigants; particularly so where the Rules command obedience. In this respect, I would adopt the words of Kiage JAin the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR, that:

“I am not in the least persuaded that Article 159 of the Constitution and the Oxygen Principles which both command Courts to seek to do substantial justice in an efficient, proportionate and cost effective manner…were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice…it is in the even-handed and dispassionate application of rules that Courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity.”

[9]Accordingly, I would take the view, as did Dulu, J in Susan Gacheri Kithinji vs OCPD Dadaab and Another [2016] eKLR that this Judicial Review Application is fatally defective for the reason that the Applicant failed to comply with the mandatory provisions of Order 53 Rule 1(2) of the Civil Procedure Rules. In the premises, the same is hereby struck out with an order for each party to bear own costs.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2017

OLGA SEWE

JUDGE