[2017] KEHC 4582 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NANYUKI

JUDICIAL REVIEW NO. 1 OF 2017

IN THE MATTER OF AN APPLICATION FOR ORDERS IN THENATRUE OF CERTIORARI TO QUASH THE DECISION OF THEINDEPENDENT ELECTORAL AND BOUNDERIES COMMISSION (IEBC) DISPUTE RESOLUTION COMMITTEE COMPLAINT NO. 84 OF 2017

WESTON GITONGA ….………………………...………..………APPLICANT

versus

THE INDEPENDEN ELECTORAL AND

BOUNDARIES COMMISSION (IEBC) ……….………..….. RESPONDENT

and

THE RETURNING OFFICER, LAIKIPIA …….…..…. INTERESTED PARTY

JUDGMENT

1. WESTON GITONGA, the applicant has brought a Notice of Motion dated 15th June 2017. He seeks Judicial Review orders of (i) certiorariand(ii) mandamus.

BACKGROUND

2. The applicant was until 2nd May 2017 a member of the Jubilee Political Party. He resigned from that party and sought as an independent candidate to be a candidate for the position of senator in the Laikipia County.

3. On 28th May 2017 the applicant presented his nomination papers to the Returning Officer, Laikipia county, the interested party hereof, together with names and signatures of his supporters. The applicant deponed in his affidavit that on that day he presented over 3,000 names and signatures of his supporters for his candidacy. On that day the interested party verified that only 1883 supporters of the applicant were voters within the Laikipia County.

4. On the following day, the 29th May 2017 the applicant presented more names and signatures of his supporters but this time the interest party only cleared 19 names out of that list.

5. The applicant being aggrieved by the failure of the interested party to clear him to contest the senatorial seat at Laikipia County filed a complaint before the committee of The Independent Electoral and Boundaries Commission (IEBC).

6. The said committee of IEBC gave a Ruling dated 6th June 2017 dismissing the applicant’s complaint.

7. It is that decision of dismissal the applicant seeks by an order of certiorari that it be brought to this court and the same be quashed; and an order of mandamus to compel IEBC to receive and effect changes confirming the applicant as nominee to contest as an independent candidate the position of senator, Laikipia County.

APPLICANTS ARGUMENT AND SUBMISSIONS

8. By his affidavit sworn on 14th June 217 the applicant deponed that when the interest party rejected his list of supporters, that rejection was caused by system failure. That the interested party acknowledged there was system failure.

9. The applicant further deponed that the committee of IEBC admitted documents presented by the interested party, which document the applicant and his counsel were not given an opportunity to scrutinize them. In the applicant’s view the committee of IEBC unfairly and unreasonably dismissed his claim. That the impugned decision breached the constitutional provision which enjoins IEBC to be transparent, impartial, neutral, efficient, accurate and accountability.

SUBMISSIONS BY IEBC

10. IEBC lay emphasis on What a court will consider when granting judicial review orders. IEBC referred, in this regard, to the case REPUBLIC –V – ATTORNEY GENERAL & 4 OTHERS EX-PARTE DIAMOND HASHIM LALJI AND AHMED HASHAM LALJ I (2014)eKLR as follows:

“Judicial review application do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. it follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.

b. Therefore judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The court in judicial review proceedings is mainly concerned with the question of fairness to the applicant …..”(emphasis added)

11. IEBC also submitted that the applicant had failed to produce evidence of breach occasioned by it.

ANALYSIS AND DETERMINATION

12. According to the interested party the applicant ran foul of Regulation 28 (1)of theElection (General) regulation, 2012. That Regulation is in the following terms.

“The person delivering an application for nomination under regulation 27 shall at the same time deliver to the returning officer, standard A 4 sheets of paper bearing the names, respective signatures and electoral numbers of two thousand registered voters in the county.”

13. The applicant being aggrieved by the rejection of his supporters list and signatures rightly referred his complaint to the Committee of IEBC. Section 74of theElection Act bestowed upon IEBC the right to resolve electoral disputes except election petitions.

14. The applicant submitted that the Committee of IEBC unfairly and unreasonably dismissed his complaint. The applicant had a burden to prove the unfairness and unreasonableness of IEBC. He who alleges or he who invokes the aid of the law must prove. That statement is in tandem with Section 107 of the Evidence Act. That Section Provides:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

15. The applicant, as correctly submitted on behalf of I E B C, was granted a hearing by the Committee. Indeed the decision of that Committee proves the same. That decision refers to the complaint made by the applicant against the interested party. The applicant in support of his complaint before the committee filed an affidavit. It follows that there is no evidence presented before this court which shows unfairness or unreasonableness of the Committee. The statement in the applicant’s affidavit that the Committee admitted documents in possession of the interested party which the applicant alleges he did not have sight of is unsubstantiated even in the proceedings before the committee. In any case one is left wondering what these documents were and what effect if any they had in the decision of the Committee. The Committee was determining the dispute on whether the applicant complied with Regulation 28 (1). That Regulation required the applicant to present to the interested arty signatures and electoral numbers of two thousand registered voters of Laikipia County. The interested parties contention before the Committee was that the applicant’s list and signatures of voters in Laikipia County was insufficient as required. It follows that the only documents the committee could have considered in the list of voters presented by the applicant to confirm if it met the requirements of Regulations 28(1). There could not have been any other document which the Committee could have considered.

16. What essentially seems to be the grievance of the applicant is that the committee failed to overturn the decision of the interested party and thereby denied him the right to present his nomination paper. That grievance goes to merit and not to process. Thereby it removes itself from judicial review process, which is concerned only with the process.

17. The applicant’s Notice of Motion dated 15th June, 2017 has nomerit and it is dismissed with costs being awarded to therespondent and the interested party.

JUDGMENT SIGNED AT NANYUKI BY:

MARY KASANGO

JUDGE

JUDGMENT DELIVERED AT NYERI THIS 12TH DAY OF JULY 2017

BY :

MSHILA – JUDGE

NYERI HIGH COURT

On behalf of JUSTICE MARY KASANGO – JUDGE, NANYUKI HIGH COURT