[2013] KEHC 3006 (KLR)
The court held that the applicant's right to a fair hearing was not violated by the limited time for oral submissions, as the Committee had access to all written materials and the circumstances did not require a lengthier oral hearing. The IEBC acted within its statutory mandate by relying on the party list...
Source-derived case information.
- Citation
- [2013] KEHC 3006 (KLR)
- Parties
- Applicant: Salah Maalim Aliyo; Respondent: Independent Electoral and Boundaries Commission; Respondent: United Republican Party
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 236 of 2013
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application dismissed
- Judges
- EM Ngugi, DAS Majanja, CC Kipkorir
- Legal Topics
- Nomination Disputes, Party Lists, Fair Hearing Rights, Jurisdiction of Iebc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salah Maalim Aliyo
Applicant
Independent Electoral and Boundaries Commission
Respondent
United Republican Party
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the IEBC Dispute Resolution Committee acted within its jurisdiction in approving the nomination list.
- 2 Whether the applicant was denied a fair hearing due to limited time for oral submissions.
- 3 Whether the Committee was required to give reasons for its decision.
Ratio Decidendi
The court held that the applicant's right to a fair hearing was not violated by the limited time for oral submissions, as the Committee had access to all written materials and the circumstances did not require a lengthier oral hearing. The IEBC acted within its statutory mandate by relying on the party list submitted within the prescribed time, and the applicant's request for reconstitution of the list was not permissible. The Committee was not required to consider evidence that was not before it at the time of its decision. The application was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW NO. 236 OF 2013
BETWEEN
SALAH MAALIM ALIYO .............................................. APPLICANT
AND
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ............................ 1ST RESPONDENT
UNITED REPUBLICAN PARTY ........................ 2ND RESPONDENT
AND
SOKOREY MAALIM ISSAKOW ........... 1ST INTERESTED PARTY
IBRAHIM HARMA ISSAK ..................... 2ND INTERESTED PARTY
FARHIYA RASHID KULI ...................... 3RD INTERESTED PARTY
JUDGMENT
The Applicant in the Notice of Motion dated 2nd July 2013 seeks to quash the decision of the IEBC Dispute Resolution Committee (“Committee”) of 7th June 2013 declaring the interested parties as nominees to the Mandera County Assembly on a United Republic Party ticket in his place. He contends that his name was on the party list submitted on 30th January 2013.
After the general elections, the petitioner avers that his name was excluded from the nominated members. He stated in his deposition that, “the interests of minority groups, the Corner Tribe, are not represented in the County of Mandera. My application seeks that one of the Youth who are female being number 2 and 4 in the special category should be transferred to the gender top up list to create room for representation of marginalised groups in the specialised category.”
The petitioner’s complaint to the Committee was dismissed and he challenges the decision on the grounds that his advocate was permitted to address the Committee for only 3 minutes hence this was inadequate to address his grievance and that the Committee did not give reasons for its decision and that it acted without jurisdiction in approving a list with public officers and failing to ascertain that the gender top-up comprised female nominee only.
The Committee considered the applicant’s Complaint No. 272/2013 and held that the nomination list was in accordance with the law and dismissed it. We have considered the material before us and we find that the application lacks merit. First, the fact that the time given for submissions was too short is not a violation of the right to a fair hearing. This right must be assessed in the circumstances of each case and it must be recalled that the Committee has before it the written material which may obviate the need to engage in a lengthened oral hearing.
Second, the IEBC was bound to act upon the list submitted by the party to it within the statutory time provided under section 35 of the Elections Act, 2011. What the petitioner seeks is a reconstitution of the list which in these circumstances is not permitted. The constitution of the list is a party matter.
Thirdly, the material regarding the employment status of one of the nominees by way of a letter dated 14th June 2013 was not available to the Committee and cannot constitute a ground for review.
For the forgoing reasons, we dismiss the application with no order as to costs.
DATED and DELIVERED at NAIROBI this 12th July 2013
MUMBI NGUGI
JUDGE
D.S. MAJANJA
JUDGE
W. K. KORIR
JUDGE