[2013] KEHC 6239 (KLR)
The court held that its role in judicial review proceedings is confined to examining the legality, reasonableness, and procedural propriety of the Respondent's decision, not the merits. The Applicant sought to have the court substitute its own view for that of the Respondent regarding who should represent the...
Source-derived case information.
- Citation
- [2013] KEHC 6239 (KLR)
- Parties
- Applicant: Republic; Respondent: Independent Electoral and Boundaries Commission; Interested Party: Issack Osman Shekh
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 160 of 2013
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application dismissed
- Legal Topics
- Judicial Review Principles, Mandamus, Electoral Disputes, Nomination of Marginalized Groups
- 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
Issack Osman Shekh
Interested Party
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the Respondent's decision to exclude the Applicant from the list of nominees representing marginalized groups was illegal, unreasonable, or procedurally improper.
- 2 Whether the court can compel the Respondent to include the Applicant's name through an order of mandamus.
Ratio Decidendi
The court held that its role in judicial review proceedings is confined to examining the legality, reasonableness, and procedural propriety of the Respondent's decision, not the merits. The Applicant sought to have the court substitute its own view for that of the Respondent regarding who should represent the marginalized group, which would amount to usurping the Respondent's statutory mandate. The Respondent acted in accordance with the Elections Act by considering the list submitted by the Interested Party. There was no evidence of illegality, unreasonableness, or procedural impropriety in the Respondent's decision. Accordingly, the application for mandamus was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR CASE NO. 160 OF 2013
REPUBLIC....................................................................APPLICANT
VERSUS
THE INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION............................RESPONDENT
ISSACK OSMAN SHEKH..................................INTERESTED PARTY
JUDGEMENT
The substantive prayer in the amended notice of motion dated 4th July, 2013 is for an order of mandamus compelling the Respondent, the Independent Electoral and Boundaries Commission to include the name of Issack Osman Shekh, the Applicant as representing the marginalized group in the list of the Interested Party, the National Alliance Party (TNA) for Laikipia County Assembly.
The Applicant had complained to the 1st Respondent’s Disputes Resolution Committee in Complaint No. IEBC/NDRC/ PL/256/2013-ISSACK OSMAN SHEIKH v TNA that he ought to have been picked, from the list presented to the Respondent by TNA, to represent the marginalized. The Respondent dismissed the complaint on the ground that “the Constitution precludes the County Assemblies from being tied to ethnic composition.”We presume the Respondent was referring to Article 90(2) (c) of the Constitution.
The Applicant being dissatisfied with the Respondent’s decision now wants us to review the same.
The Respondent opposed the application but Ms Milimu for the Interested Party informed the court that she had not been served with the application and she was therefore not in a position to respond to it.
After considering the papers filed in this matter we find that:-
These are judicial review proceedings and the mandate of the court is confined to checking the Respondent’s decision for any illegalities, unreasonableness or procedural improprieties i.e. non-compliance with the rules of natural justice. In judicial review the court looks at the procedure under which the decision was arrived at and not the merits of the decision.
The Applicant is asking us to find that he was the most deserving person to be nominated to represent the marginalized as the Interested Party’s nominee to Laikipia County Assembly. If we do so, we will be usurping the role of the Respondent and that would be contrary to established judicial review principles.
We also note that the Respondent acted, as required by the Elections Act, on the list submitted to it by the Interested Party.
We therefore find no reason to fault the Respondent’s decision and we dismiss this application with no order as to costs.
Dated, signed and delivered at Nairobi this 12th day of July, 2013
MUMBI NGUGI, D. S. MAJANJA, W. K. KORIR,
JUDGE JUDGE JUDGE