Peninah Nadako Kiliswa V Independent Electoral & Boundaries Commision (IEBC) & 2 Others  EKLR
|Petition 28 of 2014||16 Apr 2015|
Philip Kiptoo Tunoi, Kalpana Hasmukhrai Rawal, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Smokin Charles Wanjala
Supreme Court of Kenya
Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commision,Ford Kenya & Edith Were Shitandi
Peninah Nadako Kiliswa v Independent Electoral & Boundaries Commision (IEBC) & 2 others  eKLR
Principles to be complied with when invoking the Supreme Court’s appellate jurisdiction on a matter that originated under Judicial Review
Kiliswa & 3 Others v Shitandi
Petition No 28 of 2014
Supreme Court of Kenya at Nairobi
Rawal DCJ, Tunoi, Ibrahim, Ojwang & Wanjala SCJJ
April 16, 2015
Reported by Andrew Halonyere
The appeal emanated from a complaint lodged before the dispute Resolution Committee of the IEBC, claiming that the appellant’s name had been erroneously removed, as the gender top-up nominee on the Ford Kenya party-list for Bungoma County, by being replaced with that of the third respondent. The Committee in its ruling dismissed the appellant’s complaint on the ground, that no evidence had been adduced in support of the allegations made.
The appellant challenged the Committee’s decision before the High Court by way of Judicial Review. She contested the proceedings and decision of the Committee on the basis, that the committee had overlooked the evidence placed before it, and failed to give reasons for the decision arrived at, thus detracting from the principle of fair and impartial hearing. The High Court however dismissed the appellant’s case.
The appellant, thereafter moved to the Court of Appeal. The Court of Appeal in its ruling upheld the High Court’s decision. Being dissatisfied, the appellant moved to the Supreme Court on an appeal.
The respondent on its part challenged the appeal by raising a preliminary objection on a point of law that the Supreme Court lacked jurisdiction to hear and determine the petition.
- Whether the appeal raised any issue involving the interpretation or application of the Constitution, as contemplated under article 163(4)(a) of the Constitution, so as to activate the Supreme Court’s jurisdiction.
Judicial Review - jurisdiction of the Supreme Court to entertain appeals on judicial review – principals to be complied with when moving to the Supreme Court in an appeal that originated under judicial review – whether there was a basis for invoking the Supreme Court’s appellate jurisdiction – Constitution of Kenya, 2010 article 163 (4) (a)
- By merely alleging that a question of constitutional interpretation or application is involved, without more, does not automatically bring an appeal within the ambit of article 163(4)(a) of the Constitution. Article 163 (4) (a) had to be seen to be laying down the principle that not all intended appeals lie from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court.
For an appeal to lie to the Supreme Court in a matter that originated under judicial review, the issues had to fall under the canopy of article 163(4)(a). Judicial Review was concerned with the process and when appealing to the Supreme Court in a matter that originated before the High Court by way of Judicial Review, the party concerned should comply with the following principles.
- Not all Judicial Review matters were appealable to the Supreme Court, as of right.
- It was open to the party concerned to move the Court on appeal under article 163(4)(b) of the Constitution, in which case, the normal certification process applied.
- Where such an appeal comes under article 163(4)(a), the petitioner is to identify the particular(s) of constitutional character that was canvassed at both the High Court and the Court of Appeal.
- The party concerned should demonstrate that the superior Courts had misdirected themselves in relation to prescribed constitutional principles, and either granted, or failed to grant Judicial Review remedies, the resulting decisions standing out as illegal, irrational, and/or unprocedural, hence unconstitutional.
- The Supreme Court is by no means an open forum for all cases from the Court of Appeal on judicial review matters. Each appeal is to be considered on its merits on a case-to-case basis. Only those causes bearing a real constitutional issue can be heard by the Supreme Court and a bare claim that a matter raises issues of interpretation or application of the Constitution does not suffice.
- The law recognizes that the Supreme Court as the apex Court, stands not in good stead to evaluate evidence and to make factual findings, and so in respect of such fact-material, there would be no basis for invoking the Supreme Court’s appellate jurisdiction under article 163(4) (a) of the Constitution.
Preliminary Objection upheld, petition struck out.
Petitioner to pay costs of the respondent.