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|Case Number:||Tribunal Appeal 72 of 2013|
|Parties:||Benjamin M. Mwakoma v Independent Electoral & Boundaries Commission, Orange Democratic Movement & Francis Terere|
|Date Delivered:||17 Oct 2013|
|Court:||High Court at Mombasa|
|Judge(s):||Mary Muhanji Kasango|
|Citation:||Benjamin M. Mwakoma v Independent Electoral & Boundaries Commission & 2 others  eKLR|
|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
IEBC NOMINATION DISPUTE
TRIBUNAL APPEAL NO. 72 OF 2013
BENJAMIN M. MWAKOMA ……………………………………APPELLANT
V E R S U S
1. INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION
2. ORANGE DEMOCRATIC MOVEMENT ………………… RESPONDENTS
FRANCIS TERERE ………………..……………………. INTERESTED PARTY
“TAKE NOTICE that the Respondent shall raise a Preliminary Objection at the hearing hereof seeking to have the Appellant’s Notice of Motion application dated 26th June, 2013 dismissed with costs for reasons thus:-
Article 88(4) (e) of the Constitution provides as follows:-
“The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and in particular for-
Section 74(1) of the Elections Act, 2011 is borrowed directly from Article 88(4) of the Constitution and provides as follows-
“74(1) Pursuant to Article 88(4) (e) of the Constitution, the Commission shall 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.”
Regulation 99 of the Regulations provides as follows-
“99(1) For the purposes of Article 88(4) of the Constitution,
the Commission shall develop, and publish in the Gazette, rules of procedure, including timelines applicable, for the settlement of electoral disputes under the Constitution, the Act or these Regulations.
“We agree with Counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”
The High Court in the case of Diana Kethi Kilonzo & Another –V- Independent Electoral & Boundaries Commission (IEBC) & 10 Others eKLR agreed with the above quoted decision of the Supreme Court and stated at paragraph 67 as follows on jurisdiction-
“We entirely agree with the Supreme Court. Jurisdiction is indeed comparable to a driving licence, for no motorist can lawfully embark on a journey without a valid driving licence. Once a judicial body establishes that it has no jurisdiction to handle a dispute, then it has no business proceeding further with the matter.”
the question of whether it is proper to challenge the said gazettment through an application instead of through an election petition but rather whether the appeal is properly before this Court.
before Court. I have already outlined the constitutional and statutory provisions from which the IEBC Tribunal derived its mandate to render its subject decision. None of those provisions envisages an appeal against the decision of IEBC Tribunal to the High Court.
Statute. Article 165(3) grants jurisdiction to this Court in the following terms-
“(3) Subject to Clause (5), the High Court shall have-
Court in the Diana Kethi Kilonzo case (supra) stated at paragraph 69 that the High Court has both original and supervisory jurisdiction and went on to state at paragraphs 70 and 71 as follows-
“70. It is imperative that the Court takes charge where the Constitution allows it to do so. The Court must exercise its jurisdiction to the full limit allowed by the Constitution in order to ensure that the Constitution is obeyed and respected by tribunals and other bodies under its supervisory jurisdiction. It must be noted that the IEBC – and by extension the Committee and the Returning Officer – is commanded by Article 88(5) to exercise its powers and perform its functions in accordance with the Constitution and National Legislation. This is also underlined in Article 249 which provides among the objects of the IEBC just like other Commissions and independent offices as being to, “secure the observance by all State organs of democratic values and principles” and to “promote constitutionalism.” Article 249(2) further provides that such commissions, (a) are subject only to this Constitutional and the law; and (b) are independent and not subject to direction or control by any person or authority.
71. In exercising its supervisory jurisdiction over the Respondents, the Court must ensure that the Respondents have complied with the spirit and letter of the law. In our view, where the Respondents fail to do that which is demanded of them by the Constitution, this Court will step in, at the request of an aggrieved party, to provide appropriate relief as required by Article 23(3).”
nominations only in exercise of its supervisory jurisdiction, and not in exercise of its appellate jurisdiction. It must be shown by the aggrieved party that the IEBC Tribunal acted in breach of the Constitution and/or statute or that it acted unfairly or in breach of the rules of natural justice. That can only be achieved if the aggrieved party approaches this Court by way of a Constitutional Petition or a judicial review application. None of these is before Court.
the decision of the IEBC Tribunal regarding nominations disputes by way of an appeal. If appeal was envisaged, nothing would have been easier than making an express provision for the same. There are several instances where appeals from decisions of statutory tribunals are expressly provided for in the Statute. That is the case with the decisions of National Environment Tribunal where Section 130 of the Environmental Management and Co-ordination Act, 1999 makes express provision for appeal against the decisions of the said Tribunal to the High Court. It is also the case with the Business Premises Rent Tribunal (BPRT) where Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 provides for appeal against the decisions of the BPRT to the High Court, among other similar instances. In my opinion, the lack of express provision either in the Constitution or in the Elections Act allowing for appeal against the decision of the IEBC Tribunal to the High Court clearly means that the Legislature did not have an intention of making provision for appeal to this Court as concerns nomination disputes.
Dated and delivered at Mombasa this 17th day of October, 2013.