JACQUELINE NZIVA MUNYAO v THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC) & another [2013] KEHC 5167 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Petition 103 of 2013

THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC)................1^ST RESPONDENT

THE SECRETARY GENERAL, WIPER DEMOCRATIC MOVEMENT - KENYA....................2^ND RESPONDENT

1.  By a Notice of Motion application dated 12^th February 2013 and filed in court on 13^th February 2013 the Applicant seeks orders of Judicial Review to revoke the Certificate of nomination issued by the 1^st Respondent to the 3^rd Respondent and that the 1^st Respondent be stopped from accepting the nomination of the 3^rd Respondent and to remove the 3^rd Respondent’s name from the ballot paper.  

2. The Applicant alleges that she was declared the nominee by the 2^nd Respondent pursuant to nomination exercise carried out on 17^th January 2013 wherein she garnered 2,142 votes against the 3^rd Respondent’s 1,835 votes.   

3.  For some reasons, however, the 3^rd Respondent’s papers were accepted by the IEBC. However, the party stood with the Applicant as their candidate. For some unknown reason the 3^rd Respondent lodged a complaint with IEBC pursuant to a complaint which is not clear from the records. The IEBC confirmed the 3^rd Respondent as the duly nominated aspirant for the seat.   

4. The Applicant avers that she was not invited to the IEBC hearing. The Applicant now wants that decision to be reversed.

5.  I have considered the application and the opposing affidavits and submissions. It is clear that the Applicant was the winner of the nomination exercise that was carried out. It is clear also that the 2^nd Respondent – WIPER PARTY, nominated the Applicant and forwarded the Applicant’s name for Ikombe Ward in Yatta Constituency. However,   the proceedings which led the IEBC to reverse that decision are not within this court. Under Article 88 (4) (b) of the Constitution this court has limited jurisdiction over the IEBC and can only intervene on procedural justice but not on merit.

6.  Again, the application before the court has not been served upon the 3^rd Respondent. The 3^rd Respondent, being the person whose name is with IEBC, has now acquired a right which cannot be taken away without giving the 3^rd Respondent a chance to be heard. In this regard this court finds it difficult to interfere with the IEBC decision.

7.   However, in light of the evidence on record, and for justice to be seen to be done, I order and direct the IEBC to have a second look into the matter in light of the foregoing and the record sent to the IEBC by the 2^nd Respondent.

DATED, READ AND DELIVERED AT NAIROBI THIS 19^TH DAY OF FEBRUARY 2013

Ndeto for the Petitioner/Applicant  

Nyamodi for the 1^st Respondent

Ashioya H/B Uvyu for the 3^rd Respondent