[2013] KEHC 6376 (KLR)
The court found that the IEBC Nomination Dispute Resolution Committee acted without lawful justification in altering the applicant's nominee lists, particularly in removing the Wiper nominee for Makueni County solely on the basis of spousal relationship to an elected member, which is not a valid ground for removal....
Source-derived case information.
- Citation
- [2013] KEHC 6376 (KLR)
- Parties
- Applicant: Wiper Democratic Movement-Kenya; Respondent: Independent Electoral and Boundaries Commission; Respondent: Liza Mbinya Zakaria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 200 of 2013
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- partly allowed
- Legal Topics
- Party Nominations, Electoral Dispute Resolution, Judicial Review of Iebc, Nominee Resignation, Nominee Removal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wiper Democratic Movement-Kenya
Applicant
Independent Electoral and Boundaries Commission
Respondent
Liza Mbinya Zakaria
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the IEBC Nomination Dispute Resolution Committee acted lawfully in altering the applicant's nominee lists for Makueni and Migori Counties.
- 2 Whether the removal of the Wiper nominee for Makueni County was justified on the grounds that the nominee was a spouse of an elected member.
- 3 Whether the resignation of Selina Nabwa Mwita was valid and required further investigation by the IEBC.
Ratio Decidendi
The court found that the IEBC Nomination Dispute Resolution Committee acted without lawful justification in altering the applicant's nominee lists, particularly in removing the Wiper nominee for Makueni County solely on the basis of spousal relationship to an elected member, which is not a valid ground for removal. The court also determined that the resignation of Selina Nabwa Mwita required proper investigation by the IEBC before any replacement could be made. The court emphasized the importance of respecting party autonomy in nominations and the need for administrative bodies to act within the law and provide affected parties with an opportunity to be heard. Consequently, the court...
Court Disposition
partly allowed
Orders
- The IEBC is directed to investigate the circumstances of the resignation of Selina Nagwa Mwita within 14 days and, if confirmed, to give Wiper Democratic Movement-Kenya an opportunity to nominate a member.
- The decision to remove Liza Mbinya Zakaria is hereby quashed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW NO. 200 OF 2013
BETWEEN
WIPER DEMOCRATIC MOVEMENT-KENYA ......... APPLICANT
AND
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ............................ 1ST RESPONDENT
LIZA MBINYA ZAKARIA .................................. 2ND RESPONDENT
AND
ANASTASIA WANZA MBOVA ............. 1ST INTERESTED PARTY
BUNYIGE ANNA OTAITO .................... 2ND INTERESTED PARTY
SELINA NABWA MWITA ..................... 3RD INTERESTED PARTY
JUDGMENT
The Wiper Democratic Party, the applicant has brought the Notice of Motion dated 24th June 2013 seeking to quash the decision of the IEBC Nomination Dispute Resolution Committee (“the Committee”) where it declared Liza Mbinya Zakaria and Selina Nagwa Mvita as the applicant’s nominees for Makueni County and Migori County respectively. It seeks to compel the publication of Anastasia Wanza Mbova and Bunyige Anna Otaigo as the Wiper nominee for Makueni and Migori County respectively.
The applicant avers that the names published do not accord with the wishes and resolution of the party communicated to the IEBC through several letters. It is the applicant’s position that the Committee unilaterally and without colour of right altered the applicant’s lists.
In its ruling dated 7th June 2013, the Committee made the following findings as regards the two counties: With regard to Makueni County, it was noted that, “After hearing and deliberating on all the complaints submitted the Committee hereby dismisses all the complaints relating to nominations in Makueni County.” Whereas on Migori County, the Committee noted, “That Jane Gati Marwa nominated to represent ODM in the Gender Top Up list is hereby replaced with Stella Akinyi Ombonya ID No. 8997616. There is sufficient evidence to prove that Jane Gati is a public officer working for TSC.”
As regards Selina Nabwa Mwita, we have considered that the letter dated 21st April 2013 is a resignation letter. In the circumstances, we think that the proper approach is to direct the IEBC to investigate the matter within 7 days and give the party an opportunity to make a fresh nomination.
Mr Muhoro, counsel for IEBC contended that only one name had been submitted to the IEBC so there was no one to nominate and further that the letter regarding the alleged immigration does not say anything about emigration. With regard to Makueni, counsel stated that the reason for removal of the Wiper nominee was because the nominee’s husband was an elected member and that that was not a reason for removal of the nominee. We agree that the fact of an elected member’s spouse being a nominee was not a valid reason to remove the nominee. We therefore reverse the decision in this respect.
In the circumstances, we make the following orders;
We direct the IEBC to investigate the circumstances of the resignation of SELINA NAGWA MWITA within 14 days and if it so finds to give WIPER an opportunity to nominate a member.
The decision to remove LIZA MBINYA ZAKARIA is hereby quashed.
DATED and DELIVERED at NAIROBI this 12th July 2013
MUMBI NGUGI D.S. MAJANJA W. K. KORIR
JUDGEJUDGE JUDGE