Fidelia J Kiptoo v Independent Electoral & Bounderies Commission & Hon Attoney General & Orange Democratic Movement [2013] KEHC 5667 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS  DIVISION

PETITION NO. 327 OF 2013

FIDELIA J KIPTOO.....................................................PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION......................1ST RESPONDENT

HON. ATTORNEY GENERAL ...............................2ND RESPONDENT

THE ORANGE DEMOCRATIC MOVEMENT.......INTERESTED PARTY

JUDGEMENT

The Petitioner, Fidelia J Kiptoo, was the complainant before the Disputes Resolution Tribunal (the Committee) in COMPLAINT NO. IEBC/NDRC/PL/171/2013- FIDELIA KIPTOO v ODM. The Committee was created by the Independent Electoral and Boundaries Commission (IEBC), the 1st Respondent, to hear disputes arising out of nominations made by political parties in respect of the seats envisaged by Article 177(1)(b) and (c) of the Constitution. The Petitioner’s complaint was in respect of nominations made by the Interested Party to the Makueni County Assembly.

The Committee held that the dispute was an internal party affair and there was no evidence adduced to show that the party had not followed due process.

The Petitioner being aggrieved by the decision of the 1st Respondent filed this petition seeking various declarations.  It is the Petitioner’s case that she was number one in the Gender Top Up category in the list submitted to the 1st Respondent on 19th January, 2013 by her party, the Orange Democratic Movement (ODM), the Interested Party.  She argues that in the list published, a nominee by the name Peninah Wayua Musyoka who was in the marginalized category was shifted to replace her.  It is the Petitioner’s case that the action of the 1st Respondent was unconstitutional.

The 1st Respondent opposed the application through the replying affidavit sworn on 4th July, 2013 by its legal officer, Moses Kipkogei.  It is the 1st Respondent’s case that the name of Peninah Wanyua Musyoka was in the Gender Top Up category of the list submitted by ODM on 30th January, 2013 and the petition therefore lacks merit.

We have considered the submissions of the parties herein and find that:-

The 1st Respondent acted on the party list submitted to it by the Interested Party.  Any dispute concerning that list ought to have been addressed using the internal party mechanism for resolving disputes, failure to which the matter should have been placed before the Political Parties Disputes Tribunal created by the Political Parties Act.

The 1st Respondent considered the issues placed before it before dismissing the Petitioner’s complaint.

The Petitioner has not enjoined Peninah Wayua Musyoka who would be affected by any adverse decision in this matter.

For the foregoing reasons, we dismiss this petition with no order as to costs.

Dated, signed and delivered at Nairobi this   12th  day of     July,    2013

MUMBI NGUGI,               D. S. MAJANJA,                W. K. KORIR,

JUDGE                             JUDGE                             JUDGE