[2017] KEHC 8970 (KLR)
The court found that granting the interim orders sought by the applicant would effectively reverse the respondent's Dispute Resolution Committee's decision at a preliminary stage, before the substantive application had been filed. The court emphasized that the purpose of a stay in judicial review is to restrain a...
Source-derived case information.
- Citation
- [2017] KEHC 8970 (KLR)
- Parties
- Applicant: Republic; Respondent: Independent Electoral and Boundaries Commission; Applicant: Peter Kihanda Kahuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 356 of 2017
- Procedural Posture
- Judicial Review / Ruling on Interim Application for Stay and Interim Protection
- Outcome
- interim orders declined
- Judges
- OA Sewe
- Legal Topics
- Judicial Review Remedies, Interim Orders, Electoral Candidate Qualification, Right to Fair Elections, Stay of Implementation, Administrative Decision Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Independent Electoral and Boundaries Commission
Respondent
Peter Kihanda Kahuki
Applicant
Procedural Posture
Judicial Review / Ruling on Interim Application for Stay and Interim Protection
Legal Issues
- 1 Whether the applicant is entitled to interim orders of stay and protection pending the hearing of the substantive judicial review application.
- 2 Whether the court can compel the respondent to include the applicant's name in the list of candidates before determination of the substantive application.
- 3 Whether the application meets the threshold for grant of interim relief in judicial review proceedings.
Ratio Decidendi
The court found that granting the interim orders sought by the applicant would effectively reverse the respondent's Dispute Resolution Committee's decision at a preliminary stage, before the substantive application had been filed. The court emphasized that the purpose of a stay in judicial review is to restrain a public body from acting, not to compel it to act. Since the applicant's complaint had been dismissed and the orders sought would require positive action by the respondent, the threshold for interim relief was not met. The court declined to grant the interim orders and directed that costs be in the cause.
Court Disposition
interim orders declined
Orders
- Prayers (4) and (5) of the applicant's Chamber Summons application dated 20 June 2017 are declined.
- Costs of the Chamber Summons to be in the cause.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW NO. 356 OF 2017
IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF THE VIOLATION OF ARTICLES 10, 24(1), 25, 27, 38, 41, 47 50 AND 51 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER THE ELECTIONS ACT, 2016
AND
IN THE MATTER OF THE POLITICAL PARTIES ACT
AND IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT, CHAPTER 26 OF THE LAWS OF KENYA AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES 2010
BETWEEN
AND
REPUBLIC............................................................................APPLICANT
VERSUS
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION..........................................RESPONDENT
PETER KIHANDA KAHUKI..................................EX PARTE APPLICANT
RULING
[1]The ex parte Applicant,Peter Kihanda Kahukimoved the Court vide his Chamber Summons application dated 20 June 2017 for orders, inter alia, that the Court be pleased to direct that:
[a] As a measure of protection in the interim, his name be included by the Respondent in the August 2017 General Elections list of candidates to be published in the Kenya Gazette;
[b] that there be an order of stay to stop the implementation of the impugned decision.
[2] The prayers aforementioned were sought on the grounds that the application will be rendered nugatory unless stay is granted; and that unless the order of stay is granted to the Ex parte Applicant, the people of Gaichanjiru Ward would be denied the right to equal benefit of the law and thereby undermine their right to participate in free, fair and democratic elections. The application was supported by the affidavit annexed thereto sworn by the Applicant on 20 June 2017and the documents annexed thereto.
[3] The application was opposed by the Respondent on the grounds that the Applicant had neither established a prima facie case nor shown that the application, if successful, will be rendered nugatory if stay is not granted. It was further argued, on the authority of Taib A. Taib vs. Minister for Local Government & 3 Other [2006] eKLR that, there being no positive acts required of the Respondent by the impugned decision, the application for stay is misconceived. As for the prayer for the interim measure of protection sought, the Respondent's argument was that, as matters stand, the Applicant has not qualified to run for an elective position; and that it would not be the mandate of this Court to assume the role of the Respondent in imposing the Applicant's candidature at this stage of the proceedings. The cases of George Philip M. Wekulo vs Law Society of Kenya & Another [2005] eKLR and Lady Justice Joyce N. Khaminwa vs. Judicial Service Commission & Another [2014] eKLR were also relied on by the Respondent's Counsel to buttress his arguments.
[4]Having carefully considered the application in the light of the prayers sought at this interim stage, and having given due consideration to the Decision of the Respondent's Dispute Resolution Committee in the light of the submissions made herein by Learned Counsel for the parties, I note that the Applicant's complaint was dismissed and therefore to grant the orders sought would, in effect be to reverse that decision at this preliminary stage, noting that the Applicant is yet to file his substantive application. In this respect, I would entirely agree with the conclusion reached by Maraga, J (as he then was) in Taib A. Taib vs Minister for Local Government & 3 Others [2006] eKLR that:
"The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made ... A stay is only appropriate to restrain a public body from acting. It is, however, not appropriate to compel a public body to act..."
[5] In the premises, I would decline to grant Prayers (4) and (5) of the Applicant's Chamber Summons application dated 20 June 2017,with an order that costs of the Chamber Summons be in the cause.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JUNE, 2017
OLGA SEWE
JUDGE