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|Case Number:||Constitutional Petition 119 of 2012|
|Parties:||WILSON KIPLAGAT KEMBOI & ANOTHER V INDEPENDENT ELECTORAL & BOUNDARIESCOMMISSION|
|Date Delivered:||30 Nov 2012|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Mohammed Abdullahi Warsame, Ruth Nekoye Sitati, Hellen Amolo Omondi|
|Citation:||WILSON KIPLAGAT KEMBOI & ANOTHER V INDEPENDENT ELECTORAL & BOUNDARIES COMMISSIONeKLR|
EFFECT OF THE HIGH COURT DECISION ON THE DELIMITATION OF ELECTORAL UNITS
Reported by Emma Kinya Mwobobia
This was a matter regarding the delimitation of electoral units under Article 89(11) of the Constitution where complaints had been earlier raised regarding the manner in which the 80 new constituencies and 1450 County Assembly wards had been created, their distribution, their names, boundaries and areas of allocation. The movement of sub locations hitherto falling in one constituency to one or more of the propose constituencies was also contested. In disposing of the matter, the court issued orders for the renaming of certain wards, the moving of some wards, locations and sub-locations into other constituencies, the moving of some locations into certain wards and for the amendment of the maps of the affected constituencies in the IIEBC final report.
The instant application therefore seeks orders to review the previous judgment in respect of constituencies so as to reflect the County Assembly wards to accord with the decision.
Constitutional Law - electoral and boundaries law – delimitation of electoral and administrative boundaries – petition seeking the movement of six sub locations from Nandi Hills constituency to Tinderet constituency – effect and consequence of the previous decision by the High Court – whether the movement of the six sub locations from one constituency to another would have been contrary to the intention of the previous decision by the High Court not to interfere with the sub locations.
ATHARI YA UAMUZI WA MAHAKAMA KUU KUHUSU UWEKAJI MIPAKA WA VITENGO VYA UCHAGUZI
Imeripotiwa na Emma Kinya Mwobobia
Hili lilikuwa suala linalohusu uwekaji mipaka wa vitengo vya uchaguzi kulingana na Kifungu cha 89(11) cha Katiba pale ambapo malalamishi yalikuwa yamezuiliwa hapo awali kuhusiana na suala ambalo maeneo bunge mapya 80 na wodi za Bunge la Kaunti 1450 zilikuwa zimeundwa, ugavi wao, majina yao, mipaka na maeneo ya ugavi. Kule kusongeshwa kwa lokesheni ndogo na kuzisababisha kuwa katika eneo bunge moja katika moja au zaidi ya yale maeneo bunge yaliyopendekezwa kuliweza pia kushindaniwa. Katika kuamua suala hili, mahakama ilitoa amri za kupatiwa majina upya kwa wodi fulani, kusogezwa kwa baadhi ya wodi, lokesheni na lokesheni-ndogo hadi katika maeneo bunge mengine, kule kusogeshwa kwa baadhi ya lokesheni hadi katika wodi fulani na marekebisho ya ramani ya maeneo bunge yaliyoathirika katika ripoti ya mwisho ya IEBC.
Ombi kuuhivyo basi katika kesi hii ni kutafuta kupata amri za kuhakiki uamuzi wa awali kwa mujibu wa maeneobunge ili kuweza kuonyesha wodi za Bunge la Kaunti ili kuuiana na uamuzi huo.
Kesi imetupiliwa mbali.
|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
High Court at Nairobi (Nairobi Law Courts)
Constitutional Petition 119 of 2012
IN THE MATTER OF: THE CONSTITUTION OF KENYA
IN THE MATTER OF: IMPLEMENTATION OF RIGHTS AND FUNDAMENTAL FREEDOMS
IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLE 38, 81(D), 88(4) (C ) 89, 94(2) OF THE CONSTITUTION
IN THE MATTER OF: THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION ACT, 2011
IN THE MATTER OF: DELIMITATION OF BOUNDARIES OF TINDERET & NANDI HILLS CONSTITUENCIES AND WARDS
IN THE MATTER OF: LEGAL NOTICE NO.14 OF 6/03/2012 THE NATIONAL ASSEMBLY CONSTITUENCIES AND COUNTY ASSEMBLY WARDS ORDER, 2012
1. WILSON KIPLAGAT KEMBOI
2. ISAAC KIRWA LETING ……………...........……….……..PETITIONERS/APPLICANTS
THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION ….….RESPONDENT
THE HONOURABLE ATTORNEY GENERAL …..........………………. INTERESTED PARTY
1. The application before the court is dated 18th October 2012 and it seeks orders to review our judgment delivered on 9th July 2012 in respect of the delimitation of Nandi Hills and Tinderet Constituencies so as to reflect the County Assembly wards to accord with the decision.
2. During the hearing of the petition, we accepted the petitioners’ proposal that geographical features, community of interest, accessibility as between the highlands and lowlands were be taken into account in delimiting Nandi Hills and Tinderet constituencies. In the original map, Nandi Hills constituency comprised the following County Assembly Wards; Chepkunyuk, Nandi Hills, Kapsimotwo and Chemelil/Chemase. Tinderet Constituency comprised the following County Assembly Wards; Ol’Lessos. Kapchorua, Songhor/Soba and Tindiret.
3. In our judgment we delimited the constituencies as follows;
(a) Nandi Hills Consituency with a population of 107,534 shall comprise the following County Assembly Wards; Ol’Lessos, Kapchorua, Nandi Hills and Chepkunyuk.
(b)Tinderet constituency with a population of 100,691 shall comprise the following County Assembly wards; Chemeli/Chemase, Kapsimatwo, Songhor/Soba and Tinderet.
4. We have considered the arguments made by the parties and the only issue for our determination is whether there is an error apparent on the face of the record or a fundamental defect in our judgment which falls within the purview of review. We have read the application, the petition and the judgment. We are satisfied the judgment accords with the prayers sought in the petition.
5. What the petitioners seek in the instant application is the movement of six sub-locations in Kapchorua County Assembly that is; Tereno, Kapsokio, Kapkoros, Tereton, Kisoga and Ainapng’etuny from Nandi Hills constituency to Tinderet constituency. This would be contrary to our decision which did not interfere with sub-locations. For us to allow the application would be tantamount to undertaking a fresh delimitation. This would necessitate the re-ordering of other sub-locations in neighbouring County Assembly wards to ensure that they comply with the Constitutional threshold.
6. The effect of the judgment was to create a right that has now crystallized and taken effect and the nature of the application would have a fundamental effect on the decision.
7. We are alive to the fact that our decision was given on 9th July 2012 and this application has been brought on 18th October 2012. We are mindful of the consequences of adopting such a course as the delimitation process is not only a legal process but a political one within which strict timelines have been set by the Constitution and the statutes governing conduct of elections.
8. In the circumstances, we do not think that this is a matter that calls for us to interfere with our judgment. The application is therefore dismissed with no order as to costs.
DATED, SIGNED and DELIVERED at Nairobi this 30th day of November 2012.
H. A. OMONDI