Please Wait. Searching ...
|Case Number:||Jr Case 96 of 2013|
|Parties:||Republic v County Returning officer,Taita Taveta,Secretary, Independent Electoral & Boundaries Commission &Independent; Electoral & Boundaries Commission and Elijah Mwandoe,John Mtuta Mruttu,Jacinta Mwatela,Mwanyengela Ngali,Sophie Kibai & Wisdom Mwamburi exparte Sarah Mutile Mutwiwa|
|Date Delivered:||04 Oct 2013|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Weldon Kipyegon Korir|
|Citation:||Republic v County Returning officer,Taita Taveta & 9 others  eKLR|
|Court Division:||Judicial Review|
|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
JUDICIAL REVIEW DIVISION
JR CASE NO. 96 OF 2013
COUNTY RETURNING OFFICER,
TAITA TAVETA ...................................................1ST RESPONDENT
SECRETARY, INDEPENDENT ELECTORAL
& BOUNDARIES COMMISSION..........................2ND RESPONDENT
& BOUNDARIES COMMISSION..........................3RD RESPONDENT
ELIJAH MWANDOE...................................1ST INTERESTED PARTY
JOHN MTUTA MRUTTU.............................2ND INTERESTED PARTY
JACINTA MWATELA.................................3RD INTERESTED PARTY
MWANYENGELA NGALI............................4TH INTERESTED PARTY
SOPHIE KIBAI..........................................5TH INTERESTED PARTY
WISDOM MWAMBURI .............................6TH INTERESTED PARTY
SARAH MUTILE MUTWIWA
The application for consideration in this ruling is the chamber summons dated 15th March, 2013. Through the said application, the Applicant Sarah Mutile Mutwiwa prays for orders that:-
Without the 1st Respondent hearing the Ex-parte Applicant and/or any of the Interested Parties on the question of the validity and/or propriety or otherwise of inclusion of the aforementioned oral results from Taveta constituency in the final result Or without the 1st Respondent giving the Ex-parte Applicant any or any valid reasons for the 1st Respondent’s aforesaid decision And without giving any or any proper reasons for why the Gazettement should proceed in the face of these irregularities;
Before proceeding to declare the result for the election of the of County Governor for Taita Taveta County
The application is supported by the verifying affidavit of the Applicant and a statutory statement. There are also documents in the court file presumably filed together with the application.
The County Returning Officer, Taita Taveta; the Secretary, the Independent Electoral and Boundaries Commission; and the Independent Electoral and Boundaries Commission (IEBC) are the 1st, 2nd and 3rd respondents respectively. Elijah Mwandoe, John Mututa Mruttu, Jacinta Mwatela, Mwanyengela Ngali, Sophie Kibai and Wisdom Mwamburi are the 1st to 6th interested parties.
The Applicant in her verifying affidavit introduced herself as a registered voter in Taveta Constituency of Taita Taveta County. She averred that she voted in the election of the Taita Taveta County Governor in which the six interested parties were candidates. Through the affidavit, the Applicant avers that the contents of the statutory statement are true. There is nothing else of substance revealed in the verifying affidavit and there are no documents annexed to the affidavit.
According to the statutory statement, the grounds upon which the reliefs are sought are:-
II. If the Respondents have seen it fit to suspend County Ward Elections in Nyabasi West and Goke Haraka County Assembly Wards in Kuria East Constituency, And Bunyala South County Assembly Ward in Budalangi Constituency Gwasi North Ward in Gwassi Constituency as of 4th March 2013 at 16:15 GMT + 3(4.15 p.m.), then they ought as well to suspend the election of the Governor for Taita Taveta County and having been alerted to these irregularities and having failed to take any appropriate action, this Honourable Court may justifiably proceed to issue appropriate prerogative Orders as sought;
III. In the event that no action is taken to urgently demonstrate to the Respondents and the Interested Parties that the electoral processes of this Republic may not be so casually abused, this Honourable Court will by default be aiding and abetting the breakdown of the Rule of Law and it is in the Public Interest that the Ex-parte Applicant be left at liberty to apply for the aforesaid prerogative Orders so as to remedy the wrongs perpetuated by the Respondents on voters generally and on the Ex-parte Applicant and allow them enjoy the un-alloyed fruits of their civil liberties without this purported irregular exercise of discretion by the 1st Respondent brought as an afterthought so as to pervert the course of democracy and of justice;
The respondents opposed the application through a notice of preliminary objection dated 3rd April, 2013 as follows:-
The 1st, 3rd, 4th, 5th and 6th interested parties did not participate in these proceedings. The 2nd Interested Party through a notice of preliminary objection dated 20th March, 2013 opposed the application on the ground that the Applicant’s Chamber Summons is fatally defective as the verifying affidavit does not contain any facts in support of the application.
In a further notice of preliminary objection dated 25th March, 2013 the 2nd Interested Party opposed the application on the following grounds:-
At this stage, the question to be answered by this Court is whether the Applicant has established an arguable case for the grant of leave to commence judicial review proceedings. In the case of AGA KHAN EDUCATION SERVICE KENYA v REPUBLIC EX-PARTE SEIF  eKLR the Court of Appeal gave its guidance, as to what is expected of this Court at the leave stage, as follows:-
“We think both Mr. Inamdar and Mr. Kigano are generally agreed on the principles of law applicable in these matters. They are agreed that in order to enable a judge to grant leave under Order 53, there must be prima facie evidence of an arguable case and for that proposition both counsel rely on this Court’s decision in: IN THE MATTER OF AN APPLICATION BY SAMUEL MUCHIRI WANJUGUNA & 6 OTHERS and IN THE MATTER OF THE MINISTER FOR AGRICULTURE AND THE TEA ACT, Civil Appeal No. 144 of 2000 in which the Court approved and applied the principles to be found in the English case of R v SECRETARY OF STATE, ex p. HERBAGE  1 ALL ER 324 where it was stated thus:
“It cannot be denied that leave should be granted, if on the material available, the court considers without going into the matter in depth, that there is an arguable case for granting leave. The appropriate procedure for challenging such leave subsequently is by an application by the Respondent under the inherent jurisdiction of the court, to the judge who granted leave to set aside such leave – see Halsbury’s Laws of England, 4th Edition Vol 1 (1) paragraph 167 at page 1276.”
So once there is an arguable case, leave is to be granted and the court, at that stage, is not called upon to go into the matter in depth.”
The next question would then be whether the Applicant has, on the material presented to Court, established an arguable case. The verifying affidavit, in a judicial review application, is the document that contains the evidence. The Applicant’s verifying affidavit is indeed bear and does not disclose that the respondents have done anything untoward to warrant the intervention of this court.
There are letters in the Court file which were addressed to the Chairman of the 3rd Respondent by one Jacinta Mwatela and her counsel. Two of the letters are dated 6th March, 2013 and the third letter is dated 7th March, 2013. Through the said letters the said Jacinta Mwatela makes various allegations concerning the conduct of the election for the Taita Taveta County Governor. The letters are, however, not properly before the Court as they were not annexed to the Applicant’s verifying affidavit. I therefore agree with the 2nd Interested Party that there is no evidence in support of the application.
Another issue is whether this is a proper matter for judicial review. Where there is a procedure established by the law for resolving disputes, then that procedure should be followed. In the KIPKALYA KIPRONO KONES v REPUBLIC & 6 OTHERS  eKLR case, the Court of Appeal addressed this issue at length and concluded that:-
“We have said enough, we think to show that the procedure of judicial review, like that of a plaint or any such like procedure, is and was not available to parties aggrieved by the acts or omissions of the Commission. We re-assert, as we previously did, that the only valid way of challenging the outcome of the electoral process, and for that purpose nominating members to the National Assembly is part of the electoral process, is through an election petition as provided in the Constitution and the National Assembly Presidential Elections Act. Section 44 of the Constitution merely talks of an “application” being made to the High Court. But Section 19 (1) of the Act specifically provides that the application to the High Court…..
“shall be made by way of petition”
This has been the way, is the way and shall continue to be the way until and unless Parliament decrees otherwise.”
The position, in my view, has not changed even with the advent of the 2010 Constitution. In fact, unlike the repealed Constitution, the current Constitution clearly tasked Parliament with the onus of enacting “legislation to establish mechanisms for timely settling of electoral disputes.” In fulfillment of this responsibility, Parliament passed the Elections Act, 2011 and provided in Section 75. (1) that:-
“A question as to validity of election of a county governor shall be determined by High Court within the county or nearest to the county.”
The Elections Act provides for the establishment of courts to deal with electoral disputes. The law is therefore clear that election disputes are to be heard by election courts specifically appointed to hear those disputes. A perusal of the Applicant’s papers filed in court clearly shows that this is an election dispute which has been couched as a judicial review application. The Applicant is therefore attempting to file an election dispute through the back door. Such blatant attempt to circumvent the clear provisions of the law should not be entertained.
I am alive to the provisions of Article 88(e) of the Constitution as reproduced in Section 74 of the Elections Act. Through the said provision, the IEBC is mandated to “be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”
This court in exercise of its supervisory jurisdiction is mandated to ensure that the decisions of IEBC are within the law, reasonable and in compliance with the rules of natural justice – see Article 165(6) of the Constitution.
The disputes excluded from the jurisdiction of IEBC are “election petitions and disputes subsequent to the declaration of election results.” The application before this Court though dated 15th March, 2013 was, as can be seen from the Court file, filed on 18th March, 2013. The parties herein, do not dispute the fact that by the time this matter was filed the election results for the seat of Taita Taveta County Governor had not only been announced, but had also been gazetted. The respondents no longer had the legal authority to hear any dispute in relation to that particular election. Almost all the prayers sought by the Applicant had been overtaken by events at the time this matter was filed.
The Applicant actually admitted before this Court that what ought to have been done, had indeed been done since an election petition had been filed to challenge the election of the 2nd Interested Party as the Governor of Taita Taveta County. The Applicant cannot say that she has been left without a remedy.
For the foregoing reasons, I find that the Applicant has not established an arguable case to enable this court grant her leave to commence proceedings for the specified judicial review orders. Her application is therefore dismissed with costs to the respondents and the 2nd Interested Party.
Dated, signed and delivered at Nairobi this 4th day of October , 2013
W. K. KORIR,