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Constitutional Law HIGH COURT HAS NO JURISDICTION TO DETERMINE SUITABILITY OF CANDIDATES TO VIE FOR PRESIDENTIAL ELECTION

International Centre for Policy and Conflict & 5 Others v Attorney General & 4 others
High Court at Nairobi
Petition No 552 of 2012
M Msagha, L Kimaru, H A Omondi, P Nyamweya, GK Kimondo JJ.
February 15, 2013
Reported by Andrew Halonyere

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Issues
  1. Whether the 3rd and 4th Respondents were qualified to offer their candidature for the office of President and Deputy President respectively.
  2. Whether the High Court had jurisdiction to determine matters relating to the qualification or disqualification of a person who had been duly nominated to contest the position of President of the Republic of Kenya.
  3. Whether the nomination of 3rd and 4th Respondent to contest the offices of president and vice president respectively was in violation of the Constitution on account of the International Criminal Court charges under the Rome Statute.
  4. Whether the ICC and the Kenyan courts could simultaneously adjudicate over the same matter.
  5. Whether the Independent Election and Boundaries Commission could be restrained from accepting the nominations of the 3rd, 4th and 5th respondents
  6. Whether the courts’ could exercise sovereign power on behalf of the people of Kenya.
Constitutional Law -jurisdiction of High Court – presidential election - whether the High Court has jurisdiction to determine matters relating to presidential elections.
Constitutional Law -integrity of state officers - integrity and eligibility of a candidate seeking state office - duty of a party to exhaust other available mechanisms dealing with issues of eligibility and integrity before invoking the jurisdiction of the High Court – limitation of the High Court’s jurisdiction in interpreting eligibility and integrity issues - whether the nomination of 3rd and 4th Respondent to contest the offices of president and vice president respectively was in violation of the Constitution on account of the International Criminal Court charges - whether the Independent Election and Boundaries Commission could be restrained from accepting the nominations of the respondents – Constitution of Kenya, 2010 Articles 163 and 165 – Chapter six of the Constitution of Kenya 2013. Read More...

Held:

  1. Any question relating to the qualification or disqualification of a person who had been duly nominated to contest the position of President of the Republic of Kenya could only be determined by the Supreme Court. That included the determination of the question whether such a person met the test of integrity under chapter six of the Constitution in relation to Presidential elections. Those two questions could not have been determined or considered by the High Court outside the context of the elections that were due to be held on 4th March, 2013.

  2. The High Court lacked jurisdiction to deal with a question relating to the election of a president. That was not to say that the High Court was divested of jurisdiction to inquire into matters of integrity relating to elective and appointive public office. The only caveat was that the matter was so intertwined to the issue of presidential elections in relation to the 3rd and 4th Respondents. Therefore in light of the provisions of Articles 163 and 165, of the Constitution the High Court’s jurisdiction in the matter had been limited to interpreting the provisions of the Constitution in respect of the provisions of Chapter Six which dealt with eligibility and integrity issues.

  3. Where there were sufficient and adequate mechanisms to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not have been invoked until such mechanisms have been exhausted. The mandate of IEBC and other statutory bodies in dealing with the issues of eligibility and integrity had not been exhausted by the Petitioners before invoking the jurisdiction of the High Court.

  4. In interpreting the provisions of Chapter Six of the Constitution, the courts had to not only give a holistic and purposive interpretation to the chapter, but an interpretation that would enhance good governance, the observance of the rule of law and human rights.

  5. The purpose of Chapter six was to set higher standards of integrity for persons seeking to serve as state officers. Integrity is the firm adherence to moral and ethical values in one’s behaviour. Integrity was therefore not only about an individual’s own perception, correctness or appropriateness of their conduct, but also had a fundamental social and public quality to it. Since the society expected certain values to be upheld, the integrity provisions of the Constitution demanded that those aspiring for State office had to be beyond reproach.

  6. An inquiry into the integrity of a candidate for State office whether appointed or elected, was an essential requirement for the enforcement of Chapter Six of the Constitution. The nature and procedures of such inquiry was for Parliament to decide by way of legislation enacted pursuant to Article 80 of the Constitution. The relevant legislation in this respect includes the Leadership and Integrity Act 2012, the Ethics and Anti-Corruption Commission Act 2011, the IEBC Act 2011, the Public Officer Ethics Act 2003 and the Political Parties Act 2011. These Acts provide mechanisms under which inquiry may be made concerning the integrity of the person who aspires to public office.

  7. By virtue of the principle of complementarity under Article 1 of the Rome Statute, the ICC and the Kenyan courts could not simultaneously adjudicate over the same matter. Upon confirmation of the charges against both the 3rd and 4th Respondents, only the ICC could bar them and it could not, because the Rome Statute had no such provision.

  8. It had neither been alleged, nor had any evidence been placed before the High Court that the 3rd and 4th Respondents have been subjected to any trial by any local court or the ICC that had led to imprisonment for more than 6 months. The confirmation of charges at the ICC might have formed the basis for commencement of the trial against the 3rd and 4th Respondents. The end result however, could not be presumed, neither was there sufficient evidence that at the end of it all, a conviction might have be arrived at.

  9. Article 1 of the Constitution of Kenya places all sovereign power on the people of Kenya which shall be exercised only in accordance with the Constitution. It shall not be, and can never be the role of the High Court to exercise that power on behalf of the people of Kenya. That right must remain their best possession in a democratic society and is inalienable.

  10. The nomination of the Respondents to contest for elective office had been completed. Therefore, the prayer to bar the IEBC from accepting their nomination had been overtaken by events.

Petition dismissed.

Constitutional Law COURT NULLIFIES IEBC DECISION TO SUBSTITUTE THE NOMINATION OF A CANDIDATE

Charles John Otete v Independent Electoral & Boundaries Commission & Johannes Boy Okoba
Petition No. 90 of 2013
High Court of Kenya at Nairobi
Constitutional and Judicial Review Division
E. K. O. Ogola, J.
February 13, 2013
Reported by Lynette A. Jakakimba

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Issues
  1. Whether the Independent Electoral & Boundaries Commission (IEBC) had the mandate to substitute the nomination of a candidate in favour of another candidate.
  2. Whether IEBC’s cancellation of a candidate’s nomination certificate without giving them a fair hearing is unconstitutional.
  3. Whether the petitioner’s right to fair hearing had been violated by IEBC’s determination of the decision in absence of the Petitioner.
  4. Whether the list of political party’s nominees to IEBC can be amended under the Elections Act section 13(2) and (3).
Constitutional Law-fundamental rights and freedoms – right to fair hearing –cancellation of nomination without giving a fair hearing-whether list of political party’s nominees can be amended by IEBC-Constitution of Kenya, 2010 Article 50

Electoral Laws - party’s nomination list-whether list of political party’s nominees can be amended after submission to IEBC-Elections Act Section 13 (2), (3) Read More...

Held:

  1. The evidence before court showed beyond a shadow of a doubt that the Petitioner was the nominee of the Orange Democratic Movement (ODM).

  2. Articles 50 of the Constitution guaranteed a person’s right to a fair hearing. Thus if the nomination of a political party’s candidate is to be challenged, the rules of natural justice demand that the candidate ought to be informed of the hearing and be given a chance to be heard.

  3. Section 13 (2) and (3) of the Elections Act, provided that the list supplied to the IEBC by Political Parties cannot be amended and is final. However, where IEBC purports to hear a dispute, all parties to be affected by its decision must be notified of the proceedings and given a chance to state their part.

  4. The decision taken by the IEBC to delete the name of the Petitioner and replace it with that of the 2nd Respondent was a reckless and unlawful act which has no basis and violated the constitutional rights of the Petitioner.

  5. The IEBC cannot purport to be a political party. It has no mandate to nominate the candidates on behalf of political parties.

  6. The decision by the IEBC to cancel the nomination certificate of the Petitioner was an unconstitutional act made in bad faith and accentuated by malice and even without giving notice to the Petitioner.

Petition allowed.

Judicial Review VALIDITY OF TRANSCRIPTS VIS-Ŕ-VIS ABSTRACT DEGREE AS AN ELECTORAL REQUIREMENT

Mable Muruli v The Independent Electoral & Boundaries Commission
Petition No. 93 of 2013
Constitutional and Judicial Review Division
E. K. O. Ogola, J.
February 13, 2013
Reported by Teddy Musiga

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Issues
  1. Whether the failure to have an abstract degree certificate bars a candidate from contesting a gubernatorial position.
  2. Whether a person who has successfully undergone a process leading to the acquisition of a degree is qualified under Sec. 22(2) of the Elections Act even when no physical degree has been conferred.

Judicial Review - Judicial Review Orders – Mandatory Injunction - application seeking mandatory orders to compel the respondent to accept the applicant’s nomination papers and to issue her with clearance certificate for her to contest Kakamega County Governor – petitioner’s claim that the respondents had failed to recognize that she is a holder of a degree from the City College of London for which she is yet to pick but has transcripts.
Election Law - Qualification for electoral position – requirements under Sec 22(2) for nomination as a candidate for President, Deputy President, County Governor or Deputy County Governor – whether the petitioner has complied with the law thereby being enlisted for the candidature of Governorship of Kakamega County. Read More...

Section 22(2) of the Elections Act No. 24 provides that -

“(22) (2) Notwithstanding subsection (1)(b), a person may be nominated as a candidate for election as President, Deputy President, county Governor or deputy county Governor only if the person is a holder of a degree from a university recognized in Kenya.”

Held:

  1. The petitioner is a Degree holder within the meaning of Section 22(2) of the Elections Act No. 24.

  2. A certificate is merely a confirmation of what is already in existence. The petitioner has successfully undergone a process leading to the acquisition of the qualification required under the Elections Act and the Constitution. That process has been recognized by Commission for Higher Education and the respondent has no option but to admit the petitioner to the relevant candidacy.

Petition allowed.

Criminal Practice and Procedure RIGHTS OF A JUVENILE OFFENDER WHO IS OF UNSOUND MIND

Republic v J. W. K.
Criminal Case No. 57 of 2009
High Court of Kenya at Bungoma
F. Gikonyo, J.
February 12, 2013
Compiled by Dorcas Onam Mac’Andere & Emma Kinya M.

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Issues
  1. Which was the appropriate legal process to undertake in dealing with a juvenile offender who suffered a disease of the mind and therefore incapable of pleading, understanding proceedings or making his defence?
  2. What was the distinguishing factor for the court in dealing with persons of unsound mind under section 162 and 167 of the Criminal Procedure Code (CPC). Which was the applicable section in the circumstances?
  3. In light of section 53 of the CPC, what was the best legal process to adopt in cases where the disease of the mind of the juvenile offender was developmental in nature and has no prospects of subsiding?
  4. What does the Constitution provide as being the best course to take particularly where the offender so suffering is a minor?
Criminal Practice and Procedure-unsound mind – juvenile offender – where the offender suffered a disease of the mind – consideration by the court on the fitness of the offender to take plea – determination of whether the offender understands the nature of the plea or proceedings – where the offender is incapable of making his defence – distinction between procedures under section 162 and 167 of the Criminal Procedure Code - whether the offender is fit to stand trial – what would be the appropriate procedure to adopt in the circumstances – section 53, 162 and 167 of the Civil Procedure Code.
Constitutional Law-Rights of a child – rights of a child of unsound mind - where the juvenile offender suffered a disease of the mind which was developmental in nature – duty of court to consider the best interests of the child in the circumstances – whether detaining the offender would have been appropriate in the circumstances. Read More...

Section 53 Criminal Procedure Code
(1) Every child has the right –

(f) not to be detained, except as a measure of last resort,…..........

(2)A child's best interest is of paramount importance in every matter concerning the child.

Held:

  1. The fact that the offender was a minor made it imperative on the court to consider and be guided by the best interest of the minor. The rights of the child calls the Constitution into play, particularly Article 53 and other implementing statutes to wit, the Children Act and the International instruments on the rights of the child.

  2. The court will keep the requirement of the right of every child not to be detained at the back of its mind and will accord it due significance when making the final decision.

  3. When a court is informed of the unsound mental condition of an offender, it should carry out an inquiry under section 162(1) of the Criminal Procedure Code to establish whether the offender is of unsound mind and consequently incapable of pleading, understanding the proceedings and making his defence. This is done by calling for thorough medical examination of the offender.

  4. Where in a criminal proceeding the question of unsoundness of mind of the offender is in issue, the applicable law is section 162 of the CPC, and section 167 of CPC will not therefore apply. But in both sections, it is the prosecution to begin and prove fitness of the offender to stand trial.

  5. The application of the procedure provided in section 167 and section 162 of the CPC should be dictated by the different situations that obtain in every case. The procedure provided in those sections should enable the court to apply its mind properly in this case where it has found that the juvenile offender was suffering from a mental condition that makes him incapable of making his defence. It is only in very clear cases where unsoundness of the mind is not an issue, that the court should feel constrained to strictly apply section 167.

  6. For section 167 of CPC to apply, the prosecution must prove that the juvenile offender was sane only that he did not understand the proceedings. However, the prosecution found the offender incapable of making his defence.

  7. In all cases where one is suffering from a disease of the mind, the proper approach was to look at the overall effect of the incapacitation by the disease of the mind to see if it rendered the person incapable of understanding the charge, and to make his defence.

  8. The essence of Section 7 of the Sixth Schedule of the Constitution, 2010, is that courts should interpret and apply provisions of existing law such as the CPC deliberately by reading in necessary qualifications, modifications or alterations as to give effect to the objects, purposes and values of the Constitution.

  9. The duty of the court was to reconcile the statutes with the Constitution and Bill of Rights, and avoid setting the Constitution against the legislature or international treaties that are relevant to the subject matter of the case. This is an approach that is permitted by the Constitution itself and a practice that has gained approval in almost all jurisdictions.

  10. According to section 162 of the CPC, the trial should have been suspended, and perhaps indefinitely commit the juvenile offender to the care of a person who will be able to prevent the juvenile offender from harming self or somebody else and for his attendance in court. However, it was apparent from the medical evidence offered that the condition he was suffering from(Moderate Mental retardation) was unlikely to improve in the future and it would therefore be against the Constitution and a violation of the rights of a child to keep the proceedings of the juvenile offender ad infinitum.

  11. The current scientific and medical knowledge is and will certainly be advanced, but none offers evidence of any prospects that the condition the juvenile offender is suffering from will be reversed or become better. Thus in the absence of such evidence it would be inappropriate to give any hope that the trial may resume in the future.

  12. To place a person suffering from such a condition, and more so a juvenile, under a cloud of criminal proceedings ad infinitum would be a great prejudice to known human qualities, the right to fair trial and rights of a child, and largely, it would be a disparage of the Constitution. In the absence of such medical and scientific hope of the condition becoming better, suspending the trial is not the appropriate path.

  13. The provisions of Article 53 and 159 of the Constitution weigh heavily in this case, and the appropriate path would be to discharge the juvenile offender, who is in need of care, and should be committed to a person or institution to take care of him, prevent him from injuring self or somebody else.

  14. It is in the best interest of the juvenile offender for the court to have the advantage of a report from the office of the Probation Officer and Children Officer which will assist the court to identify a proper person or institution to carry out the exercise. The decision is informed by the interest of the juvenile offender as guaranteed under the Constitution and the circumstances of the case.

The probation officer and or children officer to submit reports in 14 days.

Civil Practice and Procedure NOTICE OF HEARING BY SHORT MESSAGE (SMS) IS SUFFICIENT SERVICE TO A PARTY IN A NOMINATION DISPUTE

Sam Rateng Okoth Kotiende v IEBC
High Court at Kisumu
Miscellaneous Application No. 10 of 2013
H. K. Chemitei, J.
February 12, 2013
Reported by Andrew Halonyere and Cynthia Liavule

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Issues
  1. Whether service of a hearing notice by short message (sms) was sufficient for purposes of party nomination dispute to be heard by the Independent Electoral & Boundaries Commission (IEBC).
  2. Whether the High Court would on a judicial review application interfere with the exercise of any power or discretion conferred on the IEBC.
  3. Whether the applicant by suing the political party officials was in violation of the Political Parties Act.
Civil Practice and Procedure-pleadings – Civil Practice and Procedure – service of process – hearing notice – hearing notice served through short message (SMS) – whether service was sufficient for purposes of party nomination dispute – whether it was in breach of natural justice.

Civil Practice and Procedure-pleadings – whether the applicants by suing political parties officials went against the political Parties Act.
Judicial Review-certiorari - application for certiorari - duty of the High Court not with the exercise of any power or discretion conferred on an independent body – Political Parties Act section 16 (1) (b)

Article 88(4)(k) of the Constitution of Kenya, 2010 The Article mandates the Independent Electoral and Boundaries Commission to monitor the compliance with legislation required relating to nomination of candidates by parties.
Read More...

Held:

  1. The Independent Boundaries Electoral Commission (IEBC) exercised its discretion within its timely schedule and it was satisfied with the short message service. The High Court could not come back and ask the commission why it exercised its discretion the way it did. If it did so then it would be usurping the power of an appellate jurisdiction.

  2. The hearing notice to the applicant via short message (SMS) was enough considering the time restriction to determine nomination disputes before it. The commission did not have to follow strict court procedure and could obtain information and proceed in anyway it thought best. The applicant could therefore not argue that he was not allowed a chance to be heard.

  3. Section 16 (1) (b) of the Political Parties Act provided that a political party which had been fully registered under Act had to be a body corporate with perpetual succession and a common seal and had to be capable, in its own name of suing and being sued. Therefore the applicant by suing the parties officials went against the said Act and the error was fundamental which could not be cured by Article 159 of the Constitution.

  4. The applicant was duly served via short message to attend commission by the process server but he choose not do. Therefore the rules of natural justice were not breached by the (IEBC).

Application dismissed.

Constitutional Law COURT DECLINES TO DECLARE THE LEADERSHIP AND INTEGRITY ACT UNCONSTITUTIONAL

Commission for the Implementation of the Constitution & 2 others v. Parliament of Kenya & 3 others
Petition No. 454 of 2012
High Court of Kenya at Nairobi
Constitutional and Human Rights Division
D. S. Majanja, J.
February 7, 2013
Reported by Victor Andande & Obura Michael

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Issue
  1. Whether the Leadership and Integrity Act, No. 19 of 2012 is unconstitutional.
Constitutional Law-petition-leadership and integrity-constitutionality of the Leadership and Integrity Act–claims that the Act does not meet the constitutional threshold for failure to provide for procedure and mechanisms of implementing Chapter 6 of the Constitution -public participation -what amounts to public participation in a legislative process-whether the Act meets the constitutional threshold-Article 80 of the Constitution of Kenya, 2010 Read More...

Held:

  1. In declaring a statute unconstitutional the court should ensure that grounds known in law have been clearly established. Failure to provide a ‘one stop-shop’ of all the procedures and mechanisms in one Act cannot in itself be sufficient ground to invalidate a statute. Thus the Leadership and Integrity Act was not unconstitutional to that extent.

  2. It is not for the court to dictate to Parliament what it should or should not pass as that is the sole prerogative of Parliament. The court can only deal with the legislative results of Parliament.

  3. The National Assembly has a broad measure of discretion in how it achieves the object of public participation. How this is effected will vary from case to case but it must be clear that a reasonable level of participation has been afforded to the public.

  4. The petitioners did not demonstrate to the court how the National Assembly had failed to achieve public participation within the constitutional parameters taking into account the process from the time the bill was initiated up to its enactment. Thus the Leadership and Integrity Act No. 19 of 2012 was not unconstitutional for want of public participation.

Petition dismissed.

Constitutional Law COURTS' PERPETUAL OBLIGATION TO PROTECT CHILDREN RIGHTS EVEN WHERE THEY ARE NOT PARTY TO THE PROCEEDINGS

Jotham Simiyu Wasike & Another v Jackson Ongeri & 7 Others
Civil Appeal No. 69 of 2012
High Court of Kenya At Bungoma
F. Gikonyo, J.
February 6, 2013
Compiled by Dorcas Onam Mac’Andere & Emma Kinya

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Issues
  1. Whether the applicants were entitled to either a relief of stay of execution or a temporary injunction pending appeal in the circumstances.
  2. Whether pendency before or determination of an application for stay by the trial court was a bar to an application for stay to an appellate court.
  3. Whether the rights of the children at the Orphanage were affected by the dispute on the registration and approval of the Orphanage by the National Children’s Council.
  4. Whether the children at the Orphanage whose rights were affected should have been joined as parties to the proceedings for their rights to have been vindicated by court.

Constitutional Law - children rights – rights of a child under the Constitution - duty of the court to protect the rights of Children – court’s obligation to protect the rights of a child at all costs where they have become an issue – enjoinment of the child as a party in a proceeding where the child rights are in issue – whether it is necessary to join the children whose rights are being affected as parties to the proceedings in order for their rights to be vindicated by the court.
Civil Practice and Procedure - stay – stay of execution – stay of execution pending appeal – claim that unless an order of stay is granted the appeal will be rendered nugatory – conditions for grant of stay of execution – effect of an order for stay of execution – whether the appellant’s were entitled to an order of stay in the circumstances – Civil Procedure Rules Order 42 Rule 6. Read More...

Held:

  1. Order 42 Rule 6(1) of the Civil Procedure Rules allows the Applicant to file an application of stay to the appellate court even if a similar application had been previously rejected by the court appealed from. There is no any statutory restriction on the discretion of the appellate court in entertaining and determining such application for stay.

  2. Under Order 42 Rule 6(6) of the Civil Procedure Rules does not remove the conditions imposed by Rule 6(2) but rather establishes an entirely different remedy of a temporary injunction. Therefore other than stay of execution, the court could grant a temporary injunction pending the hearing of an appeal. This enlarges the prospect of the court to issue intermediate measures which are necessary to protect a right, or the suit property, or prevent a violation or breach of law.

  3. The Constitution provides for an injunction as one of the reliefs that could be granted in a constitutional application under Article 22(3) of the Constitution in order to prevent a violation of a right or infringement of the Constitution.

  4. A stay of execution under Order 42 Rule 6(1) is forward looking. It cannot undo events which have already taken place. Similarly, a temporary injunction would not also be an appropriate remedy in respect of the Appellants who are already out of the suit premises.

  5. The Constitution, the Children Act, international treaties and agreements are very clear on the rights of a child and how these rights should be protected by a court of law. Accordingly, the court is under a perpetual obligation to protect the rights of a child as a matter of preference, and it does not matter at what stage of the proceeding the rights of a child have become threatened.

  6. The children in the Orphanage need not have been joined as parties in the proceedings for their rights to be vindicated by the court. Once the plight of a child is raised before a court of law, it should be dealt with conclusively and objectively. These powers of the court are not derived from the parties in the suit, but from the Constitution, statutes and international treaties on children which are jus cogens and seek to enforce peremptory norms in international law.

Status report on the Orphanage to be filed within 21days.

Electoral Laws PETITIONERS TO SEEK REVIEW TO THE POLITICAL PARTIES TRIBUNAL ON DISCOVERY OF NEW EVIDENCE

Philemon Donny Opar v Orange Democratic Movement & 2 Others
Petition No. 49 of 2013
High Court of Kenya at Nairobi
Constitutional and Judicial Review Division
D. S. Majanja, W. Korir & G. V. Odunga, JJ.
February 5, 2013
Reported by Lynette A. Jakakimba

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Issues
  1. Whether the 1st respondent (the party) had the power to withhold the nomination certificate of the Petitioner, if he had been duly nominated.
  2. Whether the 1st Respondent had breached the Political Parties Act by issuing the 2nd respondent with a nomination certificate despite the 2nd respondent being a member of another party.
  3. Whether the current petition was a duplication of the earlier proceedings before the Political Parties Tribunal.
  4. Whether the Petitioner in light of new evidence of double membership of the 2nd Respondent could apply for review to the Political Parties Tribunal under section 41(2) of the Political Parties Act.
  5. Whether the issue of commission of election offences ought to be dealt with in a Criminal Court and not a Constitutional Court.
Electoral Laws-whether a party can withhold nomination certificate of a duly nominated candidate-double membership to political party- whether a political party can issue a nomination certificate to person who is a member of another party –whether commission of election offences ought to be dealt by the criminal court- Political Parties Act Section 41(2)
Civil Practice and Procedure-application for review to political parties tribunal- discovery of new evidence after dispute is determine by political parties tribunal- whether a petitioner in light of new evidence of could apply for review to the Political Parties Tribunal- Political Parties Act section 41(2) Read More...

Held:

  1. The petitioner failed to prove the double membership of the 2nd respondent and having discovered new evidence ought to have gone back for review hence the matter before the Court is in the nature of an appeal.

  2. The contention that the petitioner on discovery of further evidence was at liberty to go back before the Tribunal had not been seriously contested. Accordingly there was an alternative procedure and remedy available to him.

  3. The law was that where there was a clear procedure for re-dress of any particular grievance prescribed by the Constitution or an Act of parliament that procedure should have been strictly followed.

  4. The issues of the commission of election offences ought to have been dealt by the criminal court as the current Court was not sitting as a criminal court in the present proceedings, and such allegations were better ventilated in a different forum and if proved the petitioner would have appropriate remedies.

Petition disallowed.

Administrative Law RIGHT TO BE HEARD FOR PARTIES TO AN ELECTORAL DISPUTE

Eric Okongo Omogeni v The Independent Electoral & Boundaries Commission & 2 others
Miscellaneous Civil Application No. 40 of 2013
Constitutional and Human Rights Division
D.S. Majanja, W. Korir & G. V. Odunga, JJ.
February 5, 2013
Reported by Teddy Musiga

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Issues
  1. Whether disputants to an electoral process should be afforded equal opportunity to be heard before an administrative tribunal.
  2. Whether the failure to notify the petitioner of the existence of an administrative process prejudices the petitioner’s rights as envisaged under Article 38(c) of the Constitution.
Administrative Law-Judicial Review Orders – Certiorari – petitioner to quash a decision made contrary to rules of natural justice – claim by the petitioner that he was condemned unheard - whether disputants to an electoral process should be afforded an equal opportunity to be heard before an administrative tribunal.
Constitutional Law-fundamental rights and freedoms – right to fair trial – Whether the failure to notify the petitioner of the administrative process prejudiced the petitioner’s rights as envisaged under Article 38(c) of the Constitution. Read More...

Article 47 of the Constitution states that -
“(1)Every person has a right to administrative action that is expeditious, efficient, lawful, reasonable abd procedurally fair.
  (2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given reasons for the action.”
Article 50 of the Constitution states that -
“(1)Every person has a 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.”

Held:

  1. Where there is a dispute between two or more parties, each of the competing claims must receive due consideration, each party must be invited with a view to affording an equal opportunity to be heard.

  2. A party should be notified of an administrative process before an order can be made to the prejudice of their rights.

  3. Obviously, the Independent Electoral and Boundaries Committee prejudiced the petitioner’s rights as enshrined under Article 38(c) of the constitution which provides that every citizen has a right, without unreasonable restrictions to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Petition allowed.

Criminal Law THE LEGAL POSITION REGARDING AN ERROR, OMMISSION OR IRREGULARITY APPARENT ON THE FACE OF THE RECORD

Alphaxad Genya v Republic
Criminal Appeal No. 262 of 2012
High Court at Kisii
R. N. Sitati, J.
January 30, 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka

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Issue
  1. Whether an error, omission or irregularity on the face of the record can occasion a failure of justice.

Criminal Law - review – application for review of orders of court – error, omission or irregularity apparent on the face of the record –whether an error, omission or irregularity on the face of the record occasioned a failure of justice – whether an error, omission or irregularity on the face of the record is curable – whether there was an error, omission or irregularity on the face of the record to warrant an automatic revision or review – Criminal Procedure Code Section 382 Read More...

Criminal Procedure Code

Section 382, “Subject to the provisions hereinabove contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this code, unless the error, omission or irregularity has occasioned a failure of justice.

Provided that in determining whether the error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

Held:

  1. An error, omission or irregularity in the order and ruling did not give rise to an automatic revision/review in favour of the applicant.

  2. The court however corrected the error apparent on the record by making adjustments to the paragraphs of the ruling which had irregularities.

Application dismissed.

Constitutional Law DUTY OF I.E.B.C. TO REGULATE CAMPAIGN MATERIAL DURING THE ELECTION PERIOD

Jeffers Miruka & 2 others (on behalf of Renacti) v. Independent Electoral and Boundaries Commission & 2 others [2013] eKLR
Petition No. 9 of 2013
High Court of Kenya at Nairobi
Constitutional and Human Rights Division
D.S. Majanja, J.
January 21, 2013
Reported by Beatrice Manyal & Nelson K. Tunoi

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Issues
  1. Whether the court could issue a conservatory order restraining the I.E.B.C from receiving nominations from candidates and political parties and further conducting the General Elections on 4th March 2013 on failure to formulate regulations, guidelines, and/or appropriate notices on the issue of campaign posters.
  2. Whether the IEBC had an obligation to promulgate specific rules that provide for the enforcement and realization of the right to a clean and safe environment (protected under Article 42) and in compliance with the State obligations under Article 69 of the Constitution of Kenya, 2010.
Constitutional Law-fundamental rights and freedoms-right to clean and healthy environment-petition seeking, inter alia, declaration that the respondents conduct amount to a clear contravention of the statutory and international acknowledged principles on protection and conservation of the environment-whether a conservatory order would issue against IEBC for failing to formulate regulations and guidelines on the management of election posters before and after the general elections whether the petition had merit-Constitution of Kenya, 2010, Articles 42, 43, 47, 69, 73 and 88
Election Law-duties and responsibilities of the IEBC-duty of the IEBC to regulate campaign material-election code of conduct-whether the petitioners could implicate the IEBC for failure to put in place guidelines and regulations for places, manner and period within which candidates and political parties may exhibit posters and other campaign material-Elections Act (Act No. 24 of 2011) sections 67, 69, 107, 110; Election Act (Regulations) Regulations 5 and 7 Read More...

Held:

  1. Although the petition raised important issues of environmental law and their intersection with the election, the issue had to be resolved within the context of the Elections Act (Act No. 24 of 2011) and Code of Conduct under the 2nd Schedule to the Elections Act.

  2. Section 110 of the Elections Act requires every political party that is eligible to nominate candidates contest elections to subscribe to the Code of Conduct. Under Regulation 5(j) (ix) of the Code of Conduct, political parties and referendum committees are obliged to remove all banners, placards and posters erected during the election period. Further, Regulation 7 provides that where the Code of Conduct is infringed, the Independent Electoral and Boundaries Commission (“IEBC”) may give specific orders to enforce the provisions of the Code. Furthermore, any person who has subscribed and violated the Code of Conduct commits an offence.

  3. Where a statute or legislation has provided a means of enforcement the procedure should generally be used. In so far as the matter concerned the Code of Conduct, it was proper for the petitioner to invoke the necessary procedure. The petitioners had written two letters of complaint to the IEBC and there was no evidence before the Court that those letters had been acted upon by the IEBC.

  4. Sections 67 and 69 of the Elections Act, 2011 creates specific offences. It is for the petitioner to lodge specific complaints with the relevant authorities and the authorities to deal with them in accordance with the law. Under the provisions of section 107 of the Elections Act, the IEBC has the power to prosecute offences under the Act in line with Article 157(12).

  5. Rule-making in the context of an election cycle is a continuous process and the Court cannot issue conservatory orders to stop a constitutionally mandated election process that is subject to specific timelines to enable the IEBC promulgate the necessary regulations.

  6. The making of rules and standards recommended or suggested is a process that involves other bodies like the 2nd and 3rd respondents and other institutions and it was proper for the Court to defer to these institutions to carry out their responsibilities.

  7. There was need to balance the public’s right to a clean environment which can be dealt with in the context of rules, and the rights to a free and fair election. In the circumstances, the balance tilts in favour of the election process which must proceed to its conclusion.

Petition dismissed with no costs; the IEBC should deal with the complaints raised by the petitioner in accordance with the established procedures.

Labour Law WRONGFUL DIMISSAL CAN ATTRACT GENERAL DAMAGES

Hudson Mukhwana v. National Hospital Insurance Fund [2012] eKLR
The Industrial Cause No. 765N of 2009
Industrial Court of Kenya at Nairobi
H. Wasilwa, J.
October 9, 2012
Reported by Mercy Ombima & Cornelius Lupao

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Issue
  1. Whether the court can award general damages in respect of suits based on wrongful termination of employment.
Constitutional Law-fundamental rights and freedoms-right to clean and healthy environment-petition seeking, inter alia, declaration that the respondents conduct amount to a clear contravention of the statutory and international acknowledged principles on protection and conservation of the environment-whether a conservatory order would issue against IEBC for failing to formulate regulations and guidelines on the management of election posters before and after the general elections whether the petition had merit-Constitution of Kenya, 2010, Articles 42, 43, 47, 69, 73 and 88
Labour Law-wrongful termination-availability of general damages to a claimant who was wrongfully retrenched- the legal position concerning this remedy in an employment contract Read More...

Held:

  1. Given the wrongful manner in which the retrenchment was done, the Claimant was entitled to payment of damages. The Court of Appeal had held in the authorities cited that his would not be viable. That had been under the old regime of the Industrial Court when the Court was still a Tribunal. The parties, having agreed to submit to the Industrial Court as currently constituted under Article 162 (2) of the Constitution, they had in principle agreed to be bound by the rules and procedures governing the court now.

  2. Under Section 12(3) of the Industrial Court Act, the Industrial Court has jurisdiction to give orders for an award of damages in any circumstances contemplated under the Act or any written law. Under Section 49 of the Employment Act 2007, the court can order payment to the employee the equivalent of a number of months’ wages or salary not exceeding twelve months based on the gross monthly wages or salary of the employee at the time of dismissal.

Court entered judgment for the Claimant and granted general damages to the tune of Kshs. 1,042,020/=

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