COURT DECLARES PETITION TO CHALLENGE THE DELIMITATION OF CONSTITUENCIES RES JUDICATA

Reported by Emma Kinya Mwobobia

Pursuant to the commencement of the voter registration exercise the petitioners/applicants herein who are residents of township and Mwamosioma sub locations situated within Kitutu Chache South Constituency sought to be registered at the various polling registration centers within the said constituency. However, when some visited the registration centers in the sub locations which fell within Kitutu Chache South Constituency they were issued with voters card slips for Nyaribari Chache Constituency.

Issues

1. Whether the petition was time barred by virtue of the decision by the High Court on the delimitation of electoral units under Article 89 of the Constitution.
2. Whether the petition was res judicata the decision by the High Court on the delimitation of electoral units under Article 89 of the Constitution.

Civil Practice and Procedure – res judicata - preliminary objection raised to a suit on the ground that the issues raised in it had already been heard and determined in a previous suit – whether the suit was res judicata the decision by the High Court on the delimitation of the electoral units under Article 89 of the Constitution.

Held:

1. The High Court ruling had given the time within which petitions challenging the legal notice delimiting the electoral units was to be filed as being on or before 10th April 2012. If the court was to entertain this petition it would end up delimiting new boundaries for the two constituencies and it had no mandate to do so. The application was therefore filed out of time.

2. The petition was res judicata the judgment of the High Court on delimitation of electoral units under Article 89 of the Constitution because the issues raised ought to have been raised on or before 10th April 2012. The petitioners had therefore lost the opportunity to ventilate their case.

3. Article 89 (11) of the Constitution, 2010 had set time lines to be met by those who wished to challenge the legal notice that had gazette the delimitation of the electoral units and anybody who had not met those timelines and in particular the 10th April, 2012, was shut out and remains shut out.

Petition dismissed.

SUBSTANTIAL QUESTION OF LAW AS ENVISAGED BY THE CONSTITUTION

Reported by Emma Kinya Mwobobia

Issue

1. Whether the various issues based on political questions raised in this matter constituted a substantial question of law as envisaged in Article 165 (4) of the Constitution.

Constitutional Law-interpretation of the Constitution – substantial question of law – constitutional provision setting out matters that ought to be heard by an uneven number of judges not being less than three to be assigned by the Chief Justice – need for such matters to be certified by court as raising a substantial question of law touching on jurisdiction – whether the issues based on political questions which were in the realm of a political organ raised a substantial question of law?  Read More...

Article 165 (4) of the Constitution, 2010 sets out the type of matters that ought to be heard by an uneven number of judges not being less than three to be assigned by the Chief Justice. Such matters are those that are certified by the court as raising a substantial question of law touching on jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been infringed, denied, violated or threatened or jurisdiction to hear any question respecting the interpretation of the Constitution.

Held:

1. The promulgation of the Constitution of Kenya, 2010 brought into being a whole new law that in every aspect raises substantial questions of law because the Constitution is new. The expanded bill of rights, citizenship issue, leadership and integrity and the issue of dealing with devolved government were matters that needed constant interpretation by the courts.

2. If every such question were to be determined by a bench of more than 2 judges, other judicial business would come to a standstill and if so, then the expectation of the public to have their cases decided expeditiously as provided under Article 159 (2) of the Constitution and section 1A and 1B of the Civil Procedure Act would never be realized.

3. The petition did not raise such a substantial question of law as envisaged by the Constitution which could only be decided by an uneven number of judges not being less than three. Therefore, there was no justification to refer the matter to the Chief Justice to empanel a bench of not less than three judges to hear and determine the same.

4. The Constitution had established the Supreme Court so that if the petitioners were not satisfied by the decision of a single judge they could move to the Court of Appeal and to the Supreme Court if need be.

Application dismissed.