Abdinoor Adan Abdikarim v Independent Electrol and Boundaries Commission & another [2013] KEMC 38 (KLR)

REPUBLIC OF KENYA

 IN THE CHIEF MA GISTRATE’S COURT

AT GARISSA

PETITION NO 3 OF 2013

                                                               BETWEEN

ABDINOOR ADAN ABDIKARIM...................................................PETITIONER

AND

INDEPENDENT ELECTROL AND BOUNDARIES COMMISSION...............................1ST RESPONDENT

               MOHAMED MOHAMUD OSMAN...............................................2ND RESPONDENT

RULING

The application and reply thereto is noted in a nutshell Mr. Mwangi and Mr. Kuloba for the 1st  and 2nd  Respondent/Applicants raised issues regarding gazette notice no 5381 that the Gazette indicates that all ward assembly election petitioners are being heard in Courts that have territorial jurisdiction except this petition.

Secondly that the gazette notice at page 2301 on electoral area is described as County Assembly ward Representative, Daanyere ward, Mbalambala Constituency Garissa County INSTEAD of County Assembly Representative Adamasajide ward, Wajir West Constituency.

That the issue of Gazzette notice may be trivial but it should not be wished away as a minor issue, for it may mutate to something else since the gazette notice does not even mention the relevant ward on which this petition is all about.

And that it is dismaying that a ward which is in Wajir County does not fall within the jurisdiction of that Court, and that petitioner filled, this petition intentionally in this Court (Garissa) with their own motives without good reasons at all, the cost of transporting election materials from Wajir may be high  if  the  petitioner  were  to  ask  for  them  that  the  Court  should  give directions if not this anomaly be brought to the attention of the Honourable Chief Justice for proper directions.

While Mr. Mutua for the Petitioner/Respondent refuted these claims and submitted that the reasons why the respondent filled this matter at Garissa Chief Magistrate’s Court is because directions were given that ward matters be  filled  at  the  Chief  Magistrate’s  Court,  while  Wajir  is  not  a  Chief Magistrate’s Court and there is no other motive at all, that jurisdiction is properly conferred to this Court by the Honourable Chief Justice vide gazette notice no 5382 the only error being the misdescription of the ward (Electoral area) in the Gazette notice and that this ought to be brought to the attention of the Chief Justice or Government printer.

Having considered the issues raised it is my finding that this is an election Court which is properly Constituted, whose jurisdiction was conferred to by the Honourable Chief Justice pursuant to the Kenya gazette notice no 5382 and in the exercise of his lordships powers as conferred by section 75 of the elections Act and Rule 6 of the elections petitions Rules 2013.

To me it is not in doubt that from the gazette notice the only error is the misdescription of  the  electoral  area  only,  the  rest  is  OK,  i.e  the  election petition number   Name of parties, Election Court and the Court station all is alright and the intent of this gazette notice is clear, even with the misdiscription of the electoral area.

I am yet to understand and appreciate how such an error is likely to prejudice any party herein or  how it  will touch on  the  core  issues herein or  even overrule the overriding objective as stipulated under rule 4 (1) (2) (3) (5). However since jurisdiction is conferred to this Court vide the same Kenya Gazette notice which seems to have omitted to mention the ward on which the election is being contested. To the extent that this error be brought to the attention of the Chief Justice, I concur with the Applicant/Respondents, may be for purposes of strict compliance with the election petition Rule 6 of 2013. To me from the gazette notice, this is a competent court with proper jurisdiction to hear and determine the matter even if it emanates from Wajir because from the rules, questions of designation and conferrement of jurisdiction to Court is not within the province of any part.

I shall invoke article 87 of the constitution of Kenya, section 80 (d) of Elections Act 2011 on jurisdiction and powers of the Court to determine matter before it without undue regard to technicalities, Rules 4(1) on the overriding objectives Rule 34 and deal with issues of cost as they emerge during hearings and, Rule

38 (b) on timeliness of the Election Petition Rule 2013 and give the following directions.

        (a)      Meanwhile this petition to proceed in this Court as gazetted unless we are directed otherwise.