Judicial Review-setting aside of leave granted -claims that the remedy of judicial review is notavailable to the Applicants

Republic v Electoral Commission of Kenya ex parte Nyoike & 3 others

 High Court, at Nairobi

April 23, 2004

Ojwang Ag J

Miscellaneous Civil Application No 129 of 2003

Judicial Review – Electoral Commission – public bodies that are amenable to judicial review – whether the Electoral Commission is a quasi-judicial body – obligation on quasi judicial bodies to act judicially.

Judicial Review – mandamus and certiorari – when these orders can issue.

 Electoral Commission – decisions of the Electoral Commission - whether they are amenable to judicial review - whether the Electoral Commission is a quasi-judicial body with obligation to act judicially.

Electoral Commission - nominations – nomination of candidates for appointment as nominated Member of Parliament – duty to nominate – role of the Electoral Commission in forwarding nominations to the president.

The applicants brought the application as the national officers of the Forum for the Restoration of Democracy for the People (Ford People), a registered political party in Kenya. The party by virtue of section 33 of the Constitution was entitled to name one person for the Electoral Commission to forward to the president for appointment as a nominated Member of Parliament.

The Electoral Commission requested the party to name one candidate to be nominated as a Member of Parliament. The party leader forwarded one name produced by the party’s own procedure of management. The party, instead of forwarding one name, gave two names. One of the names was forwarded by the party leader while the other was forwarded by the Secretary General. The Electoral Commission forwarded the name provided by the party leader, and the person was appointed by the President as a nominated Member of Parliament.

 The applicants then filed this application arguing that the Electoral Commission, the respondent herein, upon being presented with two names should have undertaken an inquiry to enable itself to take the correct decision. It was further argued that the Electoral Commission being a public body, carrying out the duty to act judicially, and had no basis in law for accepting one name and not the other.

It was argued inter alia on behalf of the respondent that the grievance of the applicants was not justiciable by way of judicial review and that the decisions of the Electoral Commission were not amenable to judicial review.

Held:

1. The Electoral Commission is a public body as it is entrusted with the fulfillment of the fundamental rights of the people. Consequently its actions are always amenable to judicial review.

2. The decisions of the Electoral Commission are justiciable and it will be required to observe the Rules of Natural Justice.

3. The Electoral Commission determines questions involving the rights of individuals and of political parties and hence must be treated as a quasi-judicial body with all the obligations of other bodies to act judicially.

4. The task of nominating candidates for appointment as nominated Members of Parliament by the President, falls not on the respondent but on the parliamentary parties. The Electoral Commission acted in excess of its’ powers when it, in effect, selected the name of Hon Kipkalya Kones and forwarded the same to the President for appointment.

5. The Electoral Commission which is an independent constitutional body and thus was not part of the private treaty establishing Ford People, was not right to assume the role of the authoritative interpreter of the constitutive documents of that party and on that basis to act as if it had a valid basis for picking the name of the Hon Kones.

6. The Electoral Commission being itself not empowered to nominate candidates for appointment as nominated Members of Parliament, could not act legally when confronted with two names as came from Ford People without substantially dispensing Natural Justice as the basis for getting to know who truly should be the candidate to be presented to the President for appointment as a nominated MP.

7. It is wrong in law for a body of its kind to claim that it is merely a secretariat of and an inferior organ to the President from whom it must take orders. The Court will make such order as may be appropriate and any reference to the peace of His Excellency the President in the operation of such an order is not necessary.

8. It is not the responsibility of this Court to determine the person to be nominated for appointment to a nominated seat in parliament; this by the Constitution, is the responsibility of the political party and thus the Electoral Commission of Kenya will have to initiate a fresh process as it complies with the law.

9. The Electoral Commission had a duty to act judicially.

10. (Obiter) The argument that the order of mandamus if issued would in effect be issuing directives to the President was without basis. The role of the President is purely formal and facilitative. The critical decision was taken by the Electoral Commission.

11 (Obiter) Judicial bodies amenable to judicial review are not necessarily courts of law or indeed quasi judicial tribunals of the kind associated with traditional administrative law. They are bodies having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially.

12. (Obiter) In this case there was a lis or a quasi-lis a contentious matter to be resolved by the respondent judiciously and judicially, the parties had to be heard, the matter could not be resolved as if a casting of lots could dispose of it. The Electoral Commission could not claim to be right by proceeding in this context as if its own preference was final and not subject to any restraint. To proceed as they did was an abuse of the process of the law.

Orders of certiori and mandamus granted

Cases 1. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208; [1969] 2 WLR 163

2. Rex v Shoreditch Assessment Committe Ex parte Morgan [1910] 2 KB 859; [1908-10] All ER 792

3. R v Board of Governors, Pangani Girls School ex parte Elizabeth Wainaina & 2 others Miscellaneous Civil Case No 818 of 1992

4. Republic v Minister for Local Government and Attorney General ex parte Joseph Okoth Waudi, Miscellaneous Civil Application No 80 of 2003

5. Republic v Director - General of East African Railways Corporation Ex parte Kaggwa [1977] KLR 194

6. Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge & others Civil Appeal No 266 of 1996 (NBI)

7. Mwau v Principal Immigration Officer [1985] KLR 72

8. Donde Bill Case, The [2002] 1 KLR 45

9. Narok County Council v Trans Mara County Council [2000] 1 EA 161

10. Hinga & another v PCEA thro Rev Dr Njoya & another [1986] KLR 317

Texts

1. Wade, S; Forsyth, C (2000) Administrative Law Oxford: Oxford University Press 8th Edn PP 707 – 708

2.Simonds, V et al (Eds) (1952-64) Halsbury’s Laws of England London: Butterworths & Co 3rd Edn paras 112, 254, 255

 3. Garner, JF (1974) Administrative Law London: Butterworths & Co Ltd 4th Edn p 180

 4. Hailsham, Lord et al (Eds, (1973) Halsbury’s Laws of England London: Butterworths & Co 4th Edn Vol 1 P 127

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order LIII rules 1, 3, 4

2. Civil Procedure Act (cap 21) sections 3A

3. Law Reform Act (cap 26) sections 8, 9

4. Constitution of Kenya sections 1A; 14; 33(1), (2), (3), (4), (5); 41 (2A), (9); 44; 123(8)

Advocates

Mr Kihara for the Applicants

Mr Adere for the Respondent April 23, 2004,