[2018] KEHC 3585 (KLR)
The court found that the petition duplicated issues already determined in Election Petition Appeal 3 of 2018, specifically regarding the nomination of the applicant and the 3rd Respondent. The court held that the Constitution and electoral laws provide clear procedures for challenging nominations, which must be done...
Source-derived case information.
- Citation
- [2018] KEHC 3585 (KLR)
- Parties
- Applicant: Rose Moturi Mwene; Respondent: The Independent Election and Boundaries Commission; Respondent: 3rd Respondent; Respondent: 4th Respondent
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Petition 10 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; petition struck out
- Legal Topics
- Nomination Disputes, Res Judicata, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Rose Moturi Mwene
Applicant
The Independent Election and Boundaries Commission
Respondent
3rd Respondent
Respondent
4th Respondent
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the issues raised in the petition are res judicata due to their determination in Election Petition Appeal 3 of 2018.
- 2 Whether the nomination process can be challenged by way of a constitutional petition rather than an election petition.
- 3 Whether the petition raises any constitutional issues requiring interpretation.
Ratio Decidendi
The court found that the petition duplicated issues already determined in Election Petition Appeal 3 of 2018, specifically regarding the nomination of the applicant and the 3rd Respondent. The court held that the Constitution and electoral laws provide clear procedures for challenging nominations, which must be done through an election petition, not a constitutional petition. The court further held that the issues raised were res judicata and that the petition failed to frame any constitutional issues requiring interpretation. Consequently, the petition was deemed an abuse of the court process and was struck out.
Court Disposition
preliminary objection upheld; petition struck out
Orders
- The preliminary objection is upheld.
- The petition is struck out.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
PETITION NO. 10 OF 2018
ROSE MOTURI MWENE..........................................PETITIONER
VERSUS
THE INDEPENDENT ELECTION AND
BOUNDARIES COMMISSION & 5OTHERS.....RESPONDENT
RULING
I have considered the preliminary objection raised by the 3rd Respondent and I find as follows. The petition that is filed by the applicant/ petitioner mirrors exactly what is filed in Election Petition Appeal 3 of 2018. The issues raised are on nomination of the applicant and the 3rd Petitioner which is the subject of EPA 3 of 2018. In my view the Constitution and Election laws are clear on the nomination process and there is no need of interpretation as sought by the Applicant. I agree with Mr. Oguttu’s submissions that an election can only be impeached by way of an Election Petition and not a constitutional petition. The Electoral laws are very specific on the recourse to be taken. From the pleadings 3rd Applicant is seeking conservatory orders in the nature of a stay which are directed at the Gazette notice number 3216 which is the subject of the Election Petition Appeal No. 3 of 2018.
The issues been raised in the petition are res judicata in that they touch on the nomination of the applicant/petitioner and the 3rd Respondent. Lastly the applicant has even failed to frame the constitutional issues.
The Petition is an abuse of the court process. The preliminary objection is upheld and is struck out. Each party to bear its own cost.
Dated signed and delivered this 10th day of August 2018.
HON. R. E. OUGO (MRS)
JUDGE
In the presence of;
Mr. Onyancha h/b for Mr. Nyamweya & Mr. Momanyi For the Petitioner
Mr. Onchwang’i h/b for Mr. Oguttu For the 3rd Respondent
Mr. Onyancha h/b for Mr. Ondimu For the 4th Respondent
Ms Rael Court/Clerk