[2022] KECA 813 (KLR)
The Court found that the applicant had satisfied the requirements for the grant of a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules. The Court considered the urgency of the matter, given the imminent general elections, and the potential prejudice to the applicant if the High Court judgment was...
Source-derived case information.
- Citation
- [2022] KECA 813 (KLR)
- Parties
- Applicant: United Democratic Alliance Party; Respondent: Kenya Human Rights Commission; Respondent: Katiba Institute; Respondent: Commission Of Jurists (ICJ)-Kenya; Respondent: Haki Yetu; Respondent: Inuka Kenya Ni Sisi Ltd; Respondent: Education Consortium; Respondent: Boundaries Commission; Respondent: Wafula Wanyonyi Chebukati; Respondent: The Attorney General; Respondent: Crawn Trust; Respondent: Human Rights
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E288 of 2022
- Procedural Posture
- Civil Application / Application for Stay Pending Appeal
- Outcome
- Application for stay of execution granted pending appeal.
- Judges
- FA Ochieng, LK Kimaru, PM Gachoka
- Legal Topics
- Electoral Processes, Stay of Judgment, Voter Identification, Interlocutory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
United Democratic Alliance Party
Applicant
Kenya Human Rights Commission
Respondent
Katiba Institute
Respondent
Commission Of Jurists (ICJ)-Kenya
Respondent
Haki Yetu
Respondent
Inuka Kenya Ni Sisi Ltd
Respondent
Education Consortium
Respondent
Boundaries Commission
Respondent
Wafula Wanyonyi Chebukati
Respondent
The Attorney General
Respondent
Crawn Trust
Respondent
Human Rights
Respondent
Procedural Posture
Civil Application / Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has met the threshold for grant of stay of execution of the High Court judgment pending appeal.
- 2 Whether the identification of voters should be guided by the Court of Appeal decision in National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR.
- 3 Whether the procedures for voter identification as set out in the Commission's Memorandum of 27th July, 2017 should be adhered to during the general elections.
Ratio Decidendi
The Court found that the applicant had satisfied the requirements for the grant of a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules. The Court considered the urgency of the matter, given the imminent general elections, and the potential prejudice to the applicant if the High Court judgment was implemented before the appeal was heard. The Court held that the established procedures for voter identification, as set out in the Commission's Memorandum of 27th July, 2017 and previously affirmed in National Super Alliance (NASA) Kenya v IEBC & 2 Others [2017] eKLR, should guide the conduct of the elections pending the determination of the appeal. The stay was granted to...
Court Disposition
Application for stay of execution granted pending appeal.
Orders
- Stay of execution of the judgment of the High Court delivered on 4th August, 2022 in Nairobi Constitutional Petition No. E306 of 2022 is granted pending hearing and determination of the intended appeal.
- The procedures for voter identification as set out in the Commission's Memorandum dated 27th July, 2017 and affirmed in National Super Alliance (NASA) Kenya v IEBC & 2 Others [2017] eKLR shall guide the Independent Electoral and Boundaries Commission.
Full Case Text
Judgment text and source record
38 paragraphs
United Democratic Alliance Party v Kenya Human Rights Commission & 8 others (Civil Application E288 of 2022) [2022] KECA 813 (KLR) (8 August 2022) (Ruling)
Neutral citation: [2022] KECA 813 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application E288 of 2022
FA Ochieng, LK Kimaru & M. Gachoka, JJA
August 8, 2022
Between
United Democratic Alliance Party
Applicant
and
Kenya Human Rights Commission
1st Respondent
Katiba Institute
2nd Respondent
Commission Of Jurists (Icj)-Kenya
3rd Respondent
Haki Yetu …………………………………………………… 4Th Respondent Inuka Kenya Ni Sisi Ltd
4th Respondent
Education Consortium
5th Respondent
Boundaries Commission
6th Respondent
Wafula Wanyonyi Chebukati ………………………9Th Respondent The Attorney General
7th Respondent
Crawn Trust
8th Respondent
Human Rights
9th Respondent
Ruling
1. We have considered the Applicant’s application was is predicated upon Rule 5(2)(b) of the Court of Appeal Rules,among other provisions of the law. We have perused the written submissions filed in favour and in opposition to the application. We have further considered the oral submissions made by Mr. Mutuma for the Applicant, Mr. Mwangi for the Respondents, other than the 8th, 9th, 10, 11th, 12 and 13th Respondents, Mr. Mukele for the 8th and 9th Respondents and Mr. Mbaji for the 12th Respondent. We have also considered the authorities cited by the parties, particularly this this Court’s decision of National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR
2. We are giving this ruling in a short form under Rule 34(1) of the Court of Appeal Rules, 2022 due to the urgency of the matter and the fact that the general elections are scheduled to be held tomorrow i.e 9th August, 2022. The reasons for the ruling shall be rendered on 28th August, 2022.
3. Upon careful consideration of issues in contention, we are of the considered opinion that the applicant has made a case for the grant of stay on the judgment of the High Court delivered on 4th August, 2022 in Nairobi Constitutional Petition No. E306 of 2022 Kenya Human Rights Commission & 6 Others vs. Independent Electoral and Boundaries Commission & 2 Others Interested partiespending the hearing and determination of the intended appeal.
4. For the avoidance of doubt, we reiterate the decision of this Court in National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 Others [supra]in respect of identification of voters shall guide the Independent Electoral and Boundaries Commission (the Commission).
5. The above decision incorporated the Memorandum of the Commission dated 27th July, 2017 which was consented to by the parties to the suit which provided that:a.“Presiding Officers must ensure that voters are identified by Biometrics upon production of an identification document used during registration. Biometric verification is a primary mode of identifying voters.”b.“Where a voter cannot be identified using Biometrics, then the Presiding Officer shall use a complementary mechanism of alphanumeric search in the presence of the agents and the voter shall fill form 32A before being issued with the six ballot papers.”c.“The Presiding Officer will resort to the use of the printed register of voters after approval from the Commission upon confirmation that the KIEMS Kit has completely failed and that there is no possibility of repair or replacement.”d.“The contents of the said Memo dated 27th July, 2017 shall be adhered to by all concerned persons in application of Regulations 69 and 83 of the Elections (General) Regulations, 2012. ”
6. The costs of the application shall abide the outcome of the intended appeal.
7. It is so ordered.
DATED and DELIVERED at NAIROBI this 8TH DAY OF AUGUST, 2022. F. OCHIENG......................................JUDGE OF APPEALL. KIMARU....................................JUDGE OF APPEALL. GACHOKA....................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRARNRB Civil Application No. E288 of 2022Ruling of the Court