Erastus Mwaniki Githinji, John Wycliffe Mwera, Fidulhussein Esmailji Abdullah
High Court at Nairobi (Milimani Law Courts)
Jaramogi Oginga Odinga & 3 others v Zachariah Richard Chesoni & Attorney General
Jaramogi Oginga Odinga & 3 others v Zachariah Richard Chesoni & another eKLR
Jaramogi Oginga Odinga & 3 others v Zachariah Richard Chesoni & another
High Court, at Nairobi November 13, 1992
Abdullah, Githinji & Mwera JJ
Miscellaneous Civil Application No 602 of 1992
Civil Practice and Procedure – appearance- government proceedings – Whether the Attorney General can appear in a suit on behalf of the Electoral Commission where the Commission is a party.
Jurisdiction – High Court – jurisdiction over constitutional matters – where a party invokes section 60 of the Constitution – whether section 60 creates a course of action for a party – provision of section 60 and 123(8) of the Constitution.
Jurisdiction – High Court – where there is a dispute concerning the composition of the Electoral Commission- whether the High Court can declare any Commission member unfit and unqualified to hold their position – provision of section 41 (1), (3), (5) and (6) of the Constitution.
Election Law- powers of the court- composition of the Electoral Commission – whether the High Court can declare a member unfit and unqualified.
Civil Practice and Procedure – locus standi – consideration by court – determination of what interest amounts to special interest which has been prejudiced.
Election Law- voter – where a voter is aggrieved before and after elections – procedure which such an aggrieved voter can seek recourse to for redress – whether another individual can seek such redress for and on behalf of other voters.
Election Law – voter – locus standi – the right of a voter to appear before the court when aggrieved before and after elections
By an originating motion the applicants came to court asking for declarations and orders on eleven grounds against the 1st respondent and the 2nd respondent. They sought orders that the 1st respondent was unfit and unqualified to head the Electoral Commission, the voter registration exercise which was going on then was null and void therefore they beseeched the Court to restrain the first respondent from acting as the Electoral Commission Chairman, an order to stop the voter registration and the voters cards which had been issued to be destroyed.
The respondents varied preliminary points on law that; there was non-joinder of the Electoral Commission, the form and procedure adopted by the applicants in bringing the application was fatal; the applicants did not have a cause of action and finally, did not have locus standi to commence the action.
1. The Electoral Commission should be considered in the same class as the Public Service Commission on whose behalf the Attorney General appeares in court when it is sued.
2. Where no mode of coming to Court is provided for yet one has a cause of action the originating motion may be used. In fact the party suing will choose the mode. If it is found unsuitable a proper one will have to be adopted so that justice is done to the parties.
3. Section 60 of the Constitution of Kenya does not create courses of action or courses to follow. Section 123(8) gives the Court power to review actions of persons or authorities given duties and functions they should execute without control and direction from any source. The Court is mandated to determine questions arising from whether such authority or body has exercised such functions according to the legal provisions applicable.
4. Under section 41(1) of the Constitution, the Electoral Commission is established with its chairman plus the members. This is a presidential prerogative. The qualifications for an electoral commission members are set out in section 41(3). The manner to remove a commission member is by a presidential tribunal appointed under section 41 and (6) reasons for removal fall in (5). There is no room for the court to declare any electoral commission member “unfit and disqualified” therefore removing him from the Electoral Commission. That is how the Legislature intended it to be and the Court cannot arrogate itself the duty on any thing regarding the removal of electoral commission members.
5. It is trite law that a party coming to Court for redress should have a genuine interest known to law which has been or is likely to be prejudiced.
6. The law is clear that a voter who is aggrieved before and after the elections can come to Court. During voter registration, any aggrieved person who feels that there is any irregularity likely to affect his right to vote can go to the local registration officer and then to the subordinate court for redress. It does not allow for some busybody to raise a complaint on behalf of others in this respect. After elections, if one is aggrieved about the results he can go to the subordinate court for local authority elections by way of an application. Or he can move the High Court by filing a petition. The aggrieved party has the ground on which he stands to be heard. There is no ground on which an individual can stand before the court in the voter registration claiming to do so on behalf of the public who are described as millions of Kenyans.
7. Even a person who can demonstrate a special interest he thinks entitles him to a declaration or relief. The Court must be satisfied, not only that the interest exists but also that it has been prejudiced. It has been prejudiced and therefore the litigant is entitled to a relief from the Court he has approached.
1. Murithi v Attorney General  KLR 1
2. Boyes v Gathure  EA 385
3. E v E  EA 604
4. St Benoist Plantation Ltd v Felix (1956) 21EACA 105
5. Masaba v Republic  EA 488
6. Republic v Thames Magistrates Court ex parte Greenbawn (1957) 55 LGR 129
7. Republic v Paddington Valuation Officer Ex Parte Peachy Property Corporation Ltd  1QB 380;  2 ALL ER 836  3 KLR 426
Denning, AT (Ed) (1979) The Discipline of Law London: Butterworths & Co Ltd p 115
1. Civil Procedure Rules (cap 21 Sub Leg) order I rule 9, order L rule 1
2. Government Proceedings Act (cap 40) sections 12(1); 13 A; 16 (1) (i)
3. Constitution of Kenya sections 41(1), (3), (5), (6); 60; 67; 70; 71; 72; 73; 74; 75; 76; 77; 78; 79; 80; 81; 82; 83; 84; 123
4. Mohammedan Marriage, Divorce and Succession Act (cap 156)
5. Companies Ordinance, 1984 [UK] section 136
6. Civil Procedure Act (cap 21) sections 61, 62
7. National Assembly and Presidential Elections Act (cap 7)
Mr M’Inoti for the Applicants
Mr Ransley and Miss Jan Mohamed for the 1st Respondent
Mr Keiuwa for the Attorney General