Jotham Mulati Welamondi v Chairman, Electoral Commission of Kenya
Jotham Mulati Welamondi v Chairman, Electoral Commission of Kenya  eKLR
Jotham Mulati Welamondi v The Chairman, Electoral Commission of Kenya
High Court, at Bungoma
July 30, 2002
Miscellaneous Application No 81 of 2002
Judicial Review – proceedings – preliminary objections – stage at which objections may be raised – type of objections that can be raised at the beginning and those that can be raised later – special jurisdiction of review – whether provisions of rules and provisions of law outside order LIII of the Civil Procedure Rules can be invoked in judicial review proceedings – the proper format and title of applications for judicial review.
Judicial Review – orders – certiorari, mandamus and prohibition – when these orders can issue – nature of the remedy of mandamus and when it can be sought – whether the Electoral Commission can be compelled by mandamus to revise and alter constituency boundaries – whether mandamus can issue when a public body is exercising a discretionary power.
Election Law – Electoral Commission – whether the constitution imposes a duty on the Electoral Commission in respect of electoral boundaries – whether an order of mandamus can issue – whether the court is entitled to interfere with the exercise of discretion of the Electoral Commission in the exercise of a discretionary power.
Civil Practice and Procedure – parties to suits - representative suits – institution of representative suits.
The applicant filed an application for judicial review seeking an order of mandamus to compel the Electoral Commission of Kenya to transfer one division back to its original constituency together with all registered voters. At the hearing the respondents took several objections. The objections were inter alia, that the application was in competent, that it invoked irrelevant provisions, that the remedy of mandamus sought was inappropriate and that the Electoral Commission had failed in its performance of a public duty.
1. Objections in limine may be taken to judicial review proceedings at the commencement of the hearing, unless those objections are predicated on disputed facts or call upon the court to exercise its discretion. In this instance the preliminary objection on the basis of alleged non-service is disputed by the applicant.
2. Judicial review proceedings under order 53 of the Civil Procedure Rules are a special procedure; which are invoked whenever orders of certiorari, mandamus or prohibition are sought in either criminal or civil proceedings.
3. In exercising powers under order 53, the court is exercising neither civil nor a criminal jurisdiction in the strict sense of the word. It is exercising jurisdiction sui generis. It therefore follows that it is incompetent to invoke the provisions of section 3A and order 1 rule 8 of the Civil Procedure Act and Rules and sections 42, 79 and 80 of the Constitution of Kenya.
4. A representative suit can only be brought in an ordinary action under the Civil Procedure Act and rules and an action to enforce the fundamental rights guaranteed under sections 70 to 83 inclusive of the Constitution of Kenya can only be brought in separate proceedings by originating summons and in accordance with the laid down special practice and procedure.
5. An order for mandamus could issue to compel the Electoral Commission to perform a duty imposed upon it by the Constitution which is appropriate in the circumstances of this case.
6. Mandamus is the appropriate remedy for compelling a person to perform a duty imposed by statute which duty he has refused to perform. A fortiori it is the appropriate remedy to compel the performance of a constitutional duty.
7. The court is entitled to intervene even where a public body in this case the Electoral Commission is exercising a discretionary power, if that discretion is not exercised judicially, rationally and fairly. The intervention would be by way of prohibition (if the act is incomplete) or certiorari (if the act is complete) and not by way of mandamus.
8. The Constitution of Kenya does not impose any duty on the Electoral Commission to carry out a review of constituency boundaries after a census, therefore there being no peremptory duty, the remedy of mandamus as sought is inappropriate.
9. Mandamus looks at the present situation and aims at enforcing a duty which has not been done, unlike certiorari, mandamus does not quash that which has been done.
10. In this case the Electoral commission is said to have made a decision to transfer Matete division voters from the original Lugari to Malava and that what was sought was a reversal of that decision hence certiorari would have been an appropriate remedy.
11. The objection that the order sought would involve the supervision of the court and accordingly it ought to be refused, is not a preliminary objection but one that can only be raised in opposition to the substantive motion on the merits.
12. All orders of certiorari, mandamus or prohibition issue in the name of the Republic and applications thereof are made in the name of the Republic at the instance of the person affected by the action or omission in issue. The application in this case was completely muddled in form and thus incompetent and misconceived in substance.
Preliminary objection sustained, motion struck out.
1. Marisin, Keduiwo A and others v Samuel Kipsige Arap Soi (suing on behalf of Kilanda Village Group) Civil Appeal No 140 of 1996
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3. Kenya National Examinations Council v R Ex parte Geoffrey Gathenji Njoroge and 9 others) Civil Appeal No 266 of 1996
4. Michuki and another v Attorney General and 2 others  KLR 498
5. R v Director-General of East African Railways Corporation, Ex Parte Kaggwa  KLR 194
6. Ogechi, Edgar and 12 others v University of Eastern Africa, Baraton Civil Appeal No 130 of 1997
7. Commissioner of Lands & another v Coastal Acquaculture Ltd Civil Appeal No 252 of 1996
8. Commissioner of Lands v Kunste Hotel Ltd Civil Appeal No 234 of 1995
9.Globe Tour, MV High Court Miscellaneous Application No 39 of 1998
10. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd  EA 696
1. Constitution of Kenya sections 42, 43, 70-83, 84
2. Civil Procedure Act (cap 21) section 3A
3. Civil Procedure Rules (cap 21 Sub leg) order I rule 8; order LIII rules 3, 4(1), 6
4. Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, 2001 (Constitution of Kenya Sub Leg) rules 9 and 11(a)
Mr HP Wamalwa for the Applicant
Mr Otieno instructed by Onyinkwa & Co Advocates for the Respondent.