[2017] KEHC 4201 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JR APPLICATION NO. 406 OF 2017

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

VERSUS

INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION....RESPONDENT

EX PARTE: JAMES PATRICK CHERUIYOT

JUDGMENT

1. The ex parte applicant, James Patrick Cheruiyot, by his Motion dated 6th June 2017, seeks the judicial review orders of certiorari, prohibition and mandamus against the respondent herein. The decision of the respondent being challenged was made on 8th June 2017 by a tribunal of the respondent in Complaint No. 294 of 2017. The grounds upon which the Motion is founded are those set out in the statutory statement dated 30th June 2017. The ex parte applicant avers that the tribunal in its decision of 8th June 2017 ignored his complaint and the evidence that was presented during the hearing of the complaint. He alleges open bias against him, claiming that the said decision was tainted with illegality, malice, irregularity, capriciousness, unfairness, irrationality, procedural impropriety and contravention of established tenets of the rules of natural justice and legitimate expectation.

2. According to the provisions of Order 53 of the Civil Procedure Rules, upon which applications for judicial review are brought, the substantive Motion filed after grant of leave ought not to be founded on new evidence in fresh affidavits. Rather it should be founded on, according to Order 53 rule 4(1), the statement and the affidavit or affidavits filed at the stage when leave was sought. It is the papers lodged at the leave stage that form the primary pleadings for the purpose of judicial review applications. Indeed, the statement is the backbone in the process. It should be verified by an affidavit, which ought to dispose as to the facts that support and expound on the matters set out in the statement.

3. I have carefully perused through the affidavit allegedly sworn to support the statement. It a three paragraph document which does not set out any facts that can shade any form of light on the matters stated in the statement. The facts are set out in another affidavit, which is not provided for under Order 53, and which was filed without leave of court. As it is, no facts have been set out in verification of the statement. Purely from a technical point of view, the application before me is not in proper form, for the matters set out in the statement have not been verified by any facts. It should stand dismissed on that score alone.

4. In his complaint dated 5th June 2017, the ex parte applicant had cited unnamed Administration Police officers as the respondents. The reasons given in the complaint against these unnamed officers is that although he had presented himself at the gate, to centre where clearance was being done, ten minutes to closing time, the police officers barred him, for unknown reasons, from gaining access to the premises to present his papers. There are two background narratives, from the face of the complaint, on the events leading up to the acts of the administration officers that the ex parte applicant is complaining about. One is by the ex parte applicant himself and the other is by a person who allegedly accompanied him. The ex parte applicant alleges that when he met the returning officer to be cleared to contest, he was informed that his list of supporters fell short by twenty-eight persons. He allegedly went out and came back with a full list of supporters and it was at that point that the administration police officers prevented him from accessing the premises to present his papers to the returning officer. The other narrative is by a person called Festus K. Langat, who alleges that the he accompanied the ex parte applicant to the returning officer to deliver an undisclosed document but the returning officer flatly declined to receive it on the ground that it had no official rubberstamp of the Nairobi office of the respondent.

5. Faced with that complaint, with the information that I have recited above, the tribunal of the respondent dismissed it on the basis that the ex parte applicant had failed to present his nomination papers within the timelines prescribed. It is the said decision of the tribunal that is said to have been made without considering the evidence presented. At the oral hearing of the Motion, counsel for the ex parte applicant urged from the bar, for there are no averments in the statement and the verifying affidavits on the allegations, that the tribunal of the respondent acted without hearing the returning officer.

6. The complaint before the respondent’s tribunal was no doubt muddled up. It is not against any of the officers of the respondent. It is directed at Administration Police Officers, who were allegedly contracted by the respondent. There is no proof that the said Administration Police Officers had any contract with the respondent to discharge duties on behalf of the respondent. I will take judicial notice that the respondent is a public body. The exercise it was undertaking was a public function. It was expected that crowds could gather at such events, and there was a duty on the part of the state organs responsible for law and order to make available their officers on the ground to provide security and to generally maintain law and order. To my mind, maintenance of law and order is not within the remit of the respondent, it is the business of the police, and it would be my belief that they were on scene for that purpose. As the police were not executing any mandate of the respondent, they were not under the command of the respondent, and the respondent could not conceivably handle any complaint arising from their conduct as such.

7. It would appear to me that from the convoluted facts presented by the ex parte applicant, the only case relating to the respondent appeared, implicitly, to be that the respondent’s returning officer had turned away the ex parte applicant and therefore denied him opportunity to present his papers. From what he says in his complaint, he had approached the returning officer with papers that were not in order and the retuning officer rejected them. He went back and tried to rectify his error and came back only to be barred at the gate. The action of the police of barring him at the gate can only suggest that he was out of time. I have seen no proof that he had arrived at the gate within the stipulated time, neither is there evidence that the returning officer ever granted him time to go and have his papers put in order. From the scenario painted in the complaint it could be concluded that the ex parte applicant presented documentation that was incomplete and was rightly turned away by the returning officer, whereupon he, on his own motion, went out to get the documents right and came back outside the time that had been allotted for the clearance exercise.

8. The grievance that the respondent’s tribunal did not hear from the returning officer was made from the bar. Ideally, such a complaint should not be dignified with any attention. Needless to say that no allegation was made against the returning officer to warrant his being required to appear before the tribunal of the respondent to state his case. There would have been no basis for requiring his attendance and input.

9. The matter before me is a judicial review application. What is on target is the decision of the respondent’s tribunal. It has to be demonstrated that the decision was arrived at through a flawed process, where the ex parte applicant was denied a fair hearing or where there was unreasonableness or bias, or any of the grounds listed in the statement filed herein. It is incumbent on the ex parte applicant to establish that his case falls within those parameters. I agree with counsel for the respondent; the ex parte applicant has not demonstrated that the said decision was tainted by any of the factors set out in the grounds listed in his statutory statement. The Motion is really an appeal against the decision to reject his nomination papers.

10. The upshot of it is that there is no merit in the application before me, dated 6th July 2017; I shall accordingly dismiss it with costs.

DATED, SIGNED and DELIVERED at NAIROBI this 18TH DAY OF JULY, 2017.

W. MUSYOKA

JUDGE