[2013] KEHC 5681 (KLR)
The court found that the petitioner was denied a fair hearing by the 1st respondent, as there was no evidence that she had a pending High Court matter at the time her complaint was dismissed. The 1st respondent's decision to deny her audience was therefore unjustified and contrary to the principles of fair...
Source-derived case information.
- Citation
- [2013] KEHC 5681 (KLR)
- Parties
- Applicant: Veronica Wangari Maina; Respondent: Independent Electoral and Boundaries Commission; Respondent: Naomi Wangechi Gitonga; Respondent: The National Alliance Party; Respondent: Republican Congress Party
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 349 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Petition allowed in part; matter remitted to the 1st respondent for hearing and determination.
- Legal Topics
- Electoral Disputes, Party Nominations, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Veronica Wangari Maina
Applicant
Independent Electoral and Boundaries Commission
Respondent
Naomi Wangechi Gitonga
Respondent
The National Alliance Party
Respondent
Republican Congress Party
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner was denied a fair hearing by the 1st respondent in relation to her nomination complaint.
- 2 Whether the 2nd respondent was validly nominated to the Nyeri County Assembly under the correct party slot.
- 3 Whether the 1st respondent acted lawfully in dismissing the petitioner’s complaint on grounds of withdrawal.
Ratio Decidendi
The court found that the petitioner was denied a fair hearing by the 1st respondent, as there was no evidence that she had a pending High Court matter at the time her complaint was dismissed. The 1st respondent's decision to deny her audience was therefore unjustified and contrary to the principles of fair administrative action and the right to be heard. The court held that the proper course was to remit the matter to the 1st respondent for a substantive hearing and determination of the petitioner's complaint regarding the nomination. The court declined to make a determination on the validity of the 2nd respondent's nomination or to substitute the petitioner's name, as these issues...
Court Disposition
Petition allowed in part; matter remitted to the 1st respondent for hearing and determination.
Orders
- The 1st respondent is ordered to hear and determine the petitioner's complaint within 14 days from the date of judgment.
- The 1st respondent shall thereafter gazette the name of the selected nominee.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. 349 OF 2013
VERONICA WANGARI MAINA.................................. PETITIONER
VERSUS
THE INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION.......................1st RESPONDENT
NAOMI WANGECHI GITONGA............................2ND RESPONDENT
THE NATIONAL ALLIANCE PARTY ...........1ST INTERESTED PARTY
REPUBLICAN CONGRESS PARTY ............2nd INTERESTED PARTY
JUDGEMENT
The Petitioner, Veronica Wangari Maina, was the complainant in COMPLAINT NO. IEBC/DRC/ PL/134/2013 – VERONICA W MAINA v TNA before the Disputes Resolution Committee (the Committee) which had been established by the 1st Respondent, the Independent Electoral and Boundaries Commission, to hear disputes, arising from nominations by political parties to county assemblies, in respect of the seats contemplated by Article 177(1) (b) and (c) of the Constitution. Her complaint was that the order of priority was not followed in the nominations. In a ruling delivered on 7th June, 2013 the Committee dismissed her complaint on the ground that she had withdrawn the matter as she had already filed a case in the High Court.
The Petitioner being aggrieved by the decision of the 1st Respondent has now approached us through the amended petition dated 5th July, 2013 and prays that the appointment of the 2nd Respondent, Naomi Wangechi Gitonga, as the 1st Interested Party’s nominee for Nyeri County Assembly be declared invalid and nullified and her name be substituted with that of the Petitioner.
Our understanding is that the Petitioner’s complaints are:-
That her complaint was never heard by the 1st Respondent. Her counsel told us that the 1st Respondent observed that the Petitioner had filed a case in the High Court and she had opted to withdraw the complaint which she had lodged before the 1st Respondent.
The 2nd Respondent was a member of the 2nd Interested Party, the Republican Congress Party of Kenya, but had been given a slot belonging to the 1st Interested Party. It is the Petitioner’s case that the 2nd Interested Party had not won any seat in Nyeri County and was therefore not entitled to a slot in respect of the seats contemplated by Article 177(1)(b) and (c) of the Constitution.
The 1st Respondent opposed the application through a replying affidavit sworn by its Legal Officer, Mr. Moses Kipkogei, on 5th July, 2013. It is the 1st Respondent’s case that the Petitioner was not in the list submitted to it by the 1st Interested Party and the Petitioner was therefore not eligible for nomination. The 1st Respondent also argued that the 2nd Respondent was nominated for a slot belonging to the 2nd Interested Party and not the 1st Interested Party.
We have agonized about this matter since the main issue was raised in the Petitioner’s supplementary affidavit sworn on 5th July, 2012 and this could be the reason Mr. Moses Kipkogei did not address the issue in his affidavit. We also note that the interested parties were brought into this matter too close to the hearing date and they may not have had the opportunity to respond to the allegations contained in the Petitioner’s pleadings. We note that this matter was first filed at Nyeri High Court as Petition No. 6/2013. The matter was placed before our brother Justice J Wakiaga for the first time on 25th June, 2013. The certificate of urgency which caused the file to be placed before Justice Wakiaga is dated 21st June, 2013 and was filed on 24th June, 2013. The decision of the 1st Respondent is dated 7th June, 2013 and unless there are other proceedings filed by the Petitioner, which proceedings were not brought to our attention, then the Petitioner had no matter pending in the High Court at the time she appeared before the 1st Respondent. There was therefore no reason for denying the Petitioner audience and she was therefore denied an opportunity of presenting her case.
We therefore order the 1st Respondent to hear and determine the Petitioner’s complaint within 14 days from today’s date. The 1st Respondent will thereafter gazette the name of the selected nominee. There will be no order as to costs.
Dated, signed and delivered at Nairobi this 12th day of July, 2013
MUMBI NGUGI, D. S. MAJANJA, W. K. KORIR,
JUDGE JUDGE JUDGE