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|Case Number:||Election 13 of 2013|
|Parties:||Lydia Mathia v Naisula Lesuuda & Independent Electroral & Boundaries Commission (IEBC)|
|Date Delivered:||21 Jun 2013|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Rose Edwina Atieno Ougo|
|Citation:||Lydia Mathia v Naisula Lesuuda & another  eKLR|
|Court Division:||Constitutional and Human Rights|
Election Petition will not be stayed on the basis of an existing Constitutional Petition on the same subject matter
Lydia Mathia v Naisula Lesuuda & Another
Election Petition No. 13 of 2013
High Court at Nairobi
June 21, 2013
Reported by Lynette A. Jakakimba
The applicant, Naisula Lesuuda a nominated member of Senate, was seeking orders that the petition herein be stayed pending the determination and or termination of Constitutional Petition 175 of 2013 between the petitioner (Lydia Mathia) and the 2nd Respondent (Independent Electoral and Boundaries Commission) in which similar orders were sought.
Naisula Lesuuda deposed that the content of the Constitutional Petition No. 175 of 2013 between the petitioner and The National Alliance (TNA) party on the one part and IEBC in this petition was filed prior to the current Election Petition and it raised substantially similar or identical issues and that the suit was still pending for determination before a 3 judge bench yet to be appointed by the Chief Justice of Kenya.
Lydia Mathia had filed Constitutional petition No. 175 of 2013 in which she alleged that her fundamental rights had been infringed and accused the IEBC for altering TNA party list in the nomination of women members to the senate and challenged the mode within which IEBC had applied in arriving at the nomination of Naisula Lesuuda.
Election Law –election petition –nominations of candidates-political party’s nomination list-dispute arising out of the removal of a name from a political party’s nomination list to senate – Constitution of Kenya, 2010 article 90,98,105 – Elections Act section 80 (1)(d) – Elections (Parliamentary And County Elections) Petition Rules rule 4
Civil Practice and Procedure – striking out of suits – res judicata –subjudice-whether the election petition was res judicata or subjudice as the petitioner had filed already filed a constitutional petition on the same subject matter Civil Procedure Act section 6 and 7
Constitutional Law -fundamental rights and freedoms – right to fair hearing – right to institute suits-whether the applicant had the right to file the election petition in light of the existing constitutional petition concerning the same subject matter – Constitution of Kenya, 2010 article 50 (1),105,159 and 165
80. (1) An election court may, in the exercise of its jurisdiction—
The Elections (Parliamentary And County Elections) Petition Rules
4. (1) The overriding objective of these Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act.
Civil Procedure Act
6. No court shall proceed with the trial or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”
7. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
Constitution of Kenya, 2010
Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(1) The High Court shall hear and determine any question whether—
(a) a person has been validly elected as a member of Parliament; or
(b) the seat of a member has become vacant.
(2) A question under clause (1) shall be heard and determined within six months of the date of lodging the petition.
(3) Parliament shall enact legislation to give full effect to this Article.
(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.
Application dismissed. Costs shall be in the cause.
Cases referred to
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELECTION NO 13 OF 2013
IN THE MATTER OF THE ELECTION ACT 2011 AND THE ELECTIONS (PARLIAMENT AND COURT COUNTY ELECTIONS) PETITION RULES, 2013
IN THE MATTER OF THE WOMEN MEMBERS NOMINATED TO THE SENATE AND GAZETTE NOTICE NO. 3508 PUBLITHE APPLICANTD IN THE KENYA GAZETTE DATED 20TH MARCH 2013
NAISULA LESUUDA……………....………………………1ST RESPONDENT
INDEPENDENT ELECTORAL &
BOUNDERIES COMMISSION (IEBC)………...............……2ND RESPONDENT
This application has arisen from the filing of this election petition. The applicant is of the opinion that this petition should be stayed and or dismissed because it is similar in content with Constitution Petition No 175 of 2013 and by dint of Article 165 (3) (b) of the Constitution that gives this court unlimited original jurisdiction in criminal and civil matters. In my view election petitions are however special proceedings that neither falls within the ambit of criminal or civil matters as was held in the case of Gideon Wambua –vs.-IEBC &Others E.P No 4 & 9 of 2013 where Odunga J. held that “There is no court established applicant under Article 165 of the Constitution known as the Election Court .The term “Election Court “however appears in section 2 of the Elections Act under which the term election court is defined to mean the High Court is the exercise of jurisdiction conferred upon it by Article 165 (3) (a) of the constitution”, therefore this court has jurisdiction to hear and determine this petition. Section 87 (1) of the Election Act states that Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes. I am cognizant to the fact that time is of essence. Once an election dispute has arisen the dispute must be determined within the time frame given by the Constitution. This has been settled in Article 105 (1) of the Constitution states that “the High Court shall hear and determine any question whether a person has been validly elected as a Member of Parliament further sub article (2) states that a question under clause (1) shall be heard and determined within six months of the date of lodging the petition. This is buttressed by Section 85 of the Election Act which states that an election petition shall be heard and determined within the period specified in the constitution.
The proceedings in the constitutional petition seek the following reliefs:-
While the Election petition is seeking for orders:-
Dated, signed and delivered this 21st Day of June 2013.
In the Presence of:-