Mohammed Hassan Ali v Independent Electoral and Boundaries Commission [2017] KEHC 3509 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL APPEAL NO. 361 OF 2017

IN THE MATTER OF MEMBER OF COUNTY ASSEMBLY – MNARANI WARD KILIFI CONSTITUENCY

MOHAMMED HASSAN ALI….…………………………………...............……APPLICANT

VS.

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ……RESPONDENT

RULING

1. A new feature of Kenyan Politics is the Independent Candidate.  Mohammed Hassan Ali (the Applicant) says that he offers himself as an Independent Candidate for the position of the Member of County Assembly for Mnarani Ward within Kilifi County (the Election).

2. The Applicant is aggrieved by the Decision of the Independent Electoral and Boundaries Commission (IEBC) that rejected his Candidature.  He then sought the intervention of the Dispute Resolution Committee of the Commission. Unlucky, the Committee dismissed his Complaint.

3. This Judicial Review seeks to upset the Decision of the Committee and bespeaks the following orders:-

2. The ex parte Applicant herein be granted:-

a. An ORDER OF CERTIORARI removing into this Honourabale Court for purposes of being quashed and to quash the decision by the Respondent made on 7. 6.2017 through its Disputes Resolution Committee which declined to compel its Returning Officer for the time being responsible for Mnarani Ward of Kilifi County to accept the nomination papers of the ex-parte Applicant as an independent candidate for election as a Member of County Assembly (MCA) for Mnahari Ward.

b. An ORDER OF MANDAMUS compelling the Respondent herein either by itself, employees, agents and/or servants howsoever to accept the nomination papers of the ex-parte Applicant and to include the ex-parte Applicant’s in the list of Candidates vying for Member of County Assembly (MCA) representing Mnarani Ward within Kilifi County as an Independent Candidate.

4.  There is however a recent development that defeats the efficacy of the Application as presented. On 27th June, 2017 the Commission gazetted the list of Candidates vying for that Election through Gazette Notice No.6253.  These are:-

NAME                                    POLITICAL PARTY NAME                                          Abbr

1. Abdulatif Mohamed                    Kenya African National Union                                KANU

2.  Alphan Hassan Juma                    Kenya African Democratic Union- Asili                   KADU-Asili

3.  Chai Saidi Badi                            Amani National Congress                                      ANC

4. Charo Daniel Kitsao                       Forum for Restoration of Democracy- Kenya       FORD-Kenya

5.  Katana AnthonyKazungu               Farmers Party                                                       FP

6.  Mohamed  Mohamed Shabaan     National Liberal Party                                           NLP

7.  Msangi Patience Wasai               Jubilee Party                                                        JP

8.  Muhambi Kahindi    Geofrey         Orange Democratic Movement                             ODM

9.  Mwashe Rose Maua                    Vibrant Democratic Party                                   VDP

10. Taura Alphonse Charo               Wiper Democratic Movement- Kenya                 WDM-Kenya

11. Thoya Juma Chengo                   Shirikisho Party of Kenya                                   SPK

Even if I were to grant the Orders sought, they will be unhelpful to the Applicant because he has not sought the quashing of the Gazette Notice.

5. And the Applicant only has himself to blame.  The Decision which is the subject of these proceedings was made on 7th June, 2017. Aware of the tight timelines the Judiciary under the auspices of the Office of The Chief Justice made elaborate arrangements for the expeditious and timely Review of Decisions emanating from the Committee of Independent Electoral and Boundaries Commission.

6. For reasons not explained, the Applicant sought permission to commence these proceedings only 14 days later on 21st June 2017.  Leave was duly granted on 27th June 2017.  So as to move the matter with speed and well alive to the unforgiving timelines, the Court sat to consider the substantive Application on 30th June, 2017, the very day it was filed. But alas! the Applicant had not served the Application on the Respondents and he sought an adjournment to 11th July, 2017.

7. In the meantime and before the hearing, the Gazette Notice had been published.

8. Notwithstanding this all important gazettement, the Motion before me does not seek its quashing. How then can this Court assist the Applicant?  His Application is overtaken by events.  Events which happened before his eyes and which he could have done something about. The tradition of Court is that it does not make Orders in vain and will not start now.

9. Yet even if I was to consider the Application on merit, it would still fail. Look at the heart and substance of the Judicial Review challenge as set out on paragraphs 9 to 18 of the Applicants Affidavit of 28th June 2017.  Its pith is a discussion and criticism of the merit of the Decision of the Independent Electoral and Boundaries Commission Committee.  Ordinarily a Judicial Review Application, brought such as this, qua Judicial Review does not invite the Reviewing Court to interrogate the merit of the Decision sought to be reviewed.  The Court concerns itself with process.  The Applicant was given a fair chance at hearing.  He however does not agree with the merit of the Committee’s Decision.  He comes to Court to challenge that Decision in the Conventional Judicial Review process which does not invite an evaluation of the merit of the Decision. He limits the scope of his Complaint. He fails to make a case within the limited beacons he set for himself.

10. For these reasons the Application is dismissed.

Dated, Signed and Delivered in Court at Nairobi this 12thday of July,2017.

F. TUIYOTT

JUDGE

PRESENT;

Applicant in person

Kinara h/b for Malonza for Respondent

Alex -  Court Clerk