[2013] KEHC 5218 (KLR)
The court found that the applicant, Robert Asembo, was not given an opportunity to be heard in the proceedings before the Political Parties Tribunal, despite being directly affected by the outcome. The court held that representation by the political party did not extinguish the applicant's individual right to a fair...
Source-derived case information.
- Citation
- [2013] KEHC 5218 (KLR)
- Parties
- Applicant: Robert Akumu Asembo; Respondent: The Political Parties Tribunal; Respondent: Orange Democratic Movement; Respondent: The Independent Electoral and Boundaries Commission; Interested Party: Lameck Siage
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 61 of 2013
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Judges
- DAS Majanja, CC Kipkorir, GV Odunga
- Legal Topics
- Right to Be Heard, Natural Justice, Political Party Nominations, Electoral Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Akumu Asembo
Applicant
The Political Parties Tribunal
Respondent
Orange Democratic Movement
Respondent
The Independent Electoral and Boundaries Commission
Respondent
Lameck Siage
Interested Party
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant was denied the right to be heard before the Political Parties Tribunal.
- 2 Whether the order issued on 30th January 2013 violated the rules of natural justice.
- 3 Whether the subsequent certificate issued by the returning officer should be quashed.
Ratio Decidendi
The court found that the applicant, Robert Asembo, was not given an opportunity to be heard in the proceedings before the Political Parties Tribunal, despite being directly affected by the outcome. The court held that representation by the political party did not extinguish the applicant's individual right to a fair hearing. The order issued on 30th January 2013 was made in breach of the rules of natural justice, specifically the right to be heard, which is enshrined in Articles 47 and 50 of the Constitution. Consequently, the court quashed both the Tribunal's order and the subsequent certificate issued by the returning officer, directing that the dispute be heard afresh with the...
Court Disposition
application allowed
Orders
- The order issued on 30th January 2013 by the Political Parties Tribunal is quashed in its entirety.
- The certificate issued by the returning officer for Embakasi Central Constituency dated 31st January 2013 is quashed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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ROBERT AKUMU ASEMBO........................................................................................... APPLICANT
AND
THE POLITICAL PARTIES TRIBUNAL...............................................................1ST RESPONDENT
ORANGE DEMOCRATIC MOVEMENT .............................................................2ND RESPONDENT
THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION........3RD RESPONDENT
LAMECK SIAGE ...............................................................................................INTERESTED PARTY
JUDGMENT
1. We have considered the application and depositions and heard the parties in support of and in opposition to the application.
2. We are satisfied that the applicant was not given a hearing at the Political Parties Tribunal Case No. 5 of 2013. Mr Robert Asembo who had been nominated by the Orange Democratic Movement to contest the position of member of National Assembly for Embakasi Central Constituency, Nairobi County was not a party to the dispute nor was he served with proceedings. The fact that the party which represented him was party to the case and was heard does not diminish Mr Asembo’s right to be heard nor does it entitle counsel for the party to appropriate the right of Mr Asembo to represent himself.
3. The order issued on 30th January 2013 was in breach of the rules of natural justice. It cannot stand nor can the court shut its eyes to a violation of this fundamental right underpinned by Articles 47 and 50 of the Constitution. The order given on 30th January 2013 is hereby quashed in its entirety.
4. The result is that every fruit of the poisonous tree must be plucked. It follows that we also quash the certificate issued by the returning officer – Embakasi Central Constituency contained in the certificate dated 31st January 2013.
5. We direct as follows;
1)The political parties Tribunal shall hear the parties to Dispute No. 5 of 2013 de novo in the presence of the applicant, Robert Asembo forthwith.
2)The IEBC shall company with the decision of the Political Parties Tribunal on the proper nominee of the Orange Democratic Movement.
3)The Political Parties tribunal shall complete its determination by close of business on 4th February 2013.
4)The IEBC/Returning officer shall be entitled to receive the nomination papers for the Orange Democratic Movement candidate for Embakasi Central Constituency by the close of business on 5th February 2013.
5)There shall be no order as to costs.
DatedandDelivered at Nairobithis 1st February 2013
D.S. MAJANJA
JUDGE
W. KORIR
JUDGE
G. V. ODUNGA
JUDGE