Kimani Wanyoike v Electoral Commission & another

High Court, at Nakuru

August 28, 1995

Rimita, J

Misc Civil Case No 111 of 1995

Election Law – nomination of candidates – time stipulate for nomination – whether returning officer has power to extend or vary the time stipulated by the law.

Statutes – interpretation of – national assembly and Presidential elections Ad (cap 7) Regulation 15 (1) (b) – provision empowering one to deliver nomination papers between 8 a.m. and 1 p.m. – whether the day mentioned in the act means the whole day – intention of legislature.

Summary of Facts

The applicant in this case was presented with a certificate serial no. 000001 by Forum for Restoration for Democracy – Ford Asili (Ford A) to contest for a parliamentary seat in Kipiripiri Constituency following the death of the member of parliament.

On 15.8.1995 two gentlemen, M/S Peter Njuguna and James Githinji filed a case before Nakuru Chief Magistrate, for orders that the Secretary General Ford A be restrained from disclaiming the defendant Kimani Wa Nyoike as party nominee. They obtained the said order. Mr. Wanyoike then rushed to the Nyeri High Court and filed a Motion for nullification of the orders of the Chief Magistrate, Nakuru. He obtained the orders.

However time had been wasted due to distance involved between Nyeri and Kipiripiri and although Mr. Wanyoike managed to arrive at the venue for registration before 1 p.m. as stipulated by law, he took more than 10 minutes being surrounded by the supporters and who wanted to know what had happened. He was therefore late in presenting his nomination papers, and the same were rejected

HELD

1. For purposes of nomination of candidates at a parliamentary election, every candidate shall be nominated by the delivery, by the candidate or his duly appointed agent to the returning officer of the constituency between the hours of 8 o’clock in the morning and one o’clock in the afternoon of the nomination day for election of a nomination paper.
2. It is the duty of the court of justice to try and get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. A statute should therefore be construed so as to carry out the intention of the legislature.
3. The law does not empower the returning officer to extend or vary the time stipulates.
4. The Court has power to grant an interim mandatory injunction under the law, but this power is used sparingly and each case should be decided on its own merit for this purpose.

Application Dismissed

James Kariuki Wahome v Republic

High Court, at Nakuru

March 10, 1995

Rimita, J

Criminal Appeal No 420 of 1993

Appeal – Right of – where one is charged and case withdrawn under section 87 (a) of Criminal Procedure Code – whether one has a right of appeal on a case that has been withdrawn under this section.

Summary of The Facts

The appellant was charged with another with offence of stealing contrary to section 275 the Penal Code. The case proceeded for hearing, but the state counsel did not close the case as they wished to amend the charge sheet on recall one of witnesses. They therefore applied for withdrawal under section 87 (a) of Criminal Procedure Code.

The appellants counsel however  and appealed stating that the magistrates ruling allowing prosecution to withdraw the case under section 87 of Criminal Procedure Code was illegal.

Held:

1. A person convicted on a trial held by a subordinate court of 1^st or 2^nd class may appeal to the High Court.
2. A person convicted on trial means a person who has been proved or declared by count of competent jurisdiction to be guilty of a crime he has been charged with.
3. The appellant has no right of appeal.

Appeal struck out.