[2017] KEHC 8899 (KLR)
The High Court lacks jurisdiction to entertain an appeal against the decision of the IEBC on nomination disputes because neither the Elections Act nor the Constitution provides a right of appeal from such decisions. The appellant failed to properly invoke the court's jurisdiction by not seeking judicial review...
Source-derived case information.
- Citation
- [2017] KEHC 8899 (KLR)
- Parties
- Appellant: Shem Odongo Ochuodho; Respondent: Independent Electoral and Boundaries Commission; Respondent: Michael Kosgei (Homabay County Returning Officer IEBC)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Appeal 2 of 2017
- Procedural Posture
- Nomination Appeal / Ruling on Appeal
- Outcome
- Appeal struck out for want of jurisdiction.
- Judges
- CJ Kendagor
- Legal Topics
- Iebc Jurisdiction, Nomination Disputes, Right of Appeal, Judicial Review, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shem Odongo Ochuodho
Appellant
Independent Electoral and Boundaries Commission
Respondent
Michael Kosgei (Homabay County Returning Officer IEBC)
Respondent
Procedural Posture
Nomination Appeal / Ruling on Appeal
Legal Issues
- 1 Does the High Court have jurisdiction to hear an appeal against the decision of the IEBC regarding nomination disputes?
- 2 Is there a right of appeal from IEBC decisions under the Elections Act or the Constitution?
- 3 Did the appellant properly invoke the court's jurisdiction by seeking judicial review orders?
Ratio Decidendi
The High Court lacks jurisdiction to entertain an appeal against the decision of the IEBC on nomination disputes because neither the Elections Act nor the Constitution provides a right of appeal from such decisions. The appellant failed to properly invoke the court's jurisdiction by not seeking judicial review orders. As a result, the appeal is incompetent and must be struck out.
Court Disposition
Appeal struck out for want of jurisdiction.
Orders
- The appeal is struck out as incompetent.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW AND CONSTITUTIONAL DIVISION
IEBC NOMINATION APPEAL NO. 2 OF 2017
SHEM ODONGO OCHUODHO…..........…..…..........….APPELLANT
VERSUS
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION….……................1ST RESPONDENT
MICHAEL KOSGEI (HOMABAY COUNTY
RETURNING OFFICER IEBC)……..……............2ND RESPONDENT
RULING
1. I have had a chance to peruse the papers filed herein by the Appellant. He has moved the court by way of a Memorandum of Appeal dated 9th June, 2017.
2. Among prayers sought is one seeking to have the judgement and decree of the 1st Respondent set aside.
3. The judgement and decree sought to be set aside is not annexed to the appeal or the supporting affidavit.
4. The Applicant has annexed a copy of a complaint Form without annexing the complaint which he presented to the 1st Respondent leading to the judgment and or decree he now challenges before this court.
5. The key issue in this appeal however is that of jurisdiction. This is an appeal against the decision of the IEBC. I asked Counsel for the Appellant to address me on this issue. All the Counsel did was to refer to the various Articles of the Constitution cited on the face of the Appeal. These are Articles 1, 2, 3, 10, 19, 21, 22, 27, 32, 36, 38, 47and 50 of the Constitution.
6. Section 74(1) of the Elections Act gives the IEBC responsibility inter alia, to settle disputes relating to or arising from nomination. This section does not however give any right of appeal to settlements reached by the IEBC. In fact even the Constitution does not give a right of appeal against the decision reached by the IEBC.
7. Had the Appellant in addition to invoking Article 23 of the Constitution which he did, sought judicial review orders, the court could have considered this matter. Having not sought any writs the court has no jurisdiction on the matter.
8. For these reasons, I find that the Appeal is incompetent and is accordingly struck out with no order as to costs.
DATED AT NAIROBI THIS 13TH DAY OF JUNE, 2017.
LESIIT, J.
JUDGE