Mourine Atieno Ochieng & Erick Ouma Opany v Orange Democratic Movement & Roger Miller Ochieng [2017] KEHC 3273 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION NOMINATION APPEAL NO. 37 OF 2017

MOURINE ATIENO OCHIENG …………….…..…….1ST APPELLANT

ERICK OUMA OPANY………………………….……2ND APPELLANT

VERSUS

ORANGE DEMOCRATIC MOVEMENT……………1ST RESPONDENT

ROGER MILLER OCHIENG……………………......2ND RESPONDENT

RULING

This Appeal dated 23rd August 2017 was filed on 25th August 2017 together with Notice of Motion of the same date. The Appeal is against the decision of the Political Parties Disputes Tribunal (PPDT) delivered on 29th July 2017. The Notice of Motion sought stay of that judgment pending the hearing and determination of the Appeal. This court directed the Appellants to serve the Appeal for the hearing of the same to save on time. The hearing of the Appeal was fixed for today 5th September 2017. This morning Mr. Ayieko for the Appellants informed the court that the 1st Appellant has withdrawn instructions from him and therefore he was appearing for the 2nd Appellant alone.

The two Appellants had appeared before the PPDT as Interested Parties in Complaint No. 438 of 2017. Their names had been included in the Migori County Assembly Party List in the Youth Category. PPDT in its judgment declared that the two Interested Parties do not qualify for nomination as youth and the Respondent was ordered to replace their names with other qualified persons. This is the reason they filed this Appeal.

This morning Mr. Ayieko for the 2nd Appellant told the court that gazettement of the names of nominees for Migori County Assembly was done on 28th August 2017 and that his client is not among the gazetted nominees. He asked the court to grant prayer (b) of the Appeal since prayer (a) that required setting aside the judgment of the PPDT has been overtaken by events. Counsel told the court that he has attached the 2nd Appellant’s birth certificate and national identity card to prove that he is a youth as defined by the law. Prayer (b) of the Memorandum of Appeal which Mr. Ayieko seeks to be granted seeks a declaration that the Appellants are youths and thus belong to the special interest category of youths.

I have considered this matter. As I have stated in various decisions including JR No. 501 of 2017 Jubilee Party v. IEBC and Hellen Wanjiku & Others (UR) and Election Nomination Appeal No. 36 of 2017 Zaynab Allyow Issack v. Jubilee Party (UR), that gazettement of the nominated members through party lists signifies the completion of “election by nomination”. It also informs members of public of the people who have been elected by nomination. Therefore, as stated by the Supreme Court the mandate of the IEBC comes to an end once the gazettement is complete. Any dispute arising subsequent to the gazettement is an election dispute that must be determined by the Election Court. (See Moses Mwicigi & 14 others v IEBC & 5 Others [2016] eKLR).

To grant prayer (b) of the Memorandum of Appeal is to interfere with matters that fall squarely on the Election Court and obviously this court is not sitting as an Election Court. In my considered view, this is an order that is best left to the Election Court to decide given that gazettement of the members of the County Assembly was done on 28th August 2017. I must decline to grant order (b) as requested. The Appellant has the option of filing an election petition before the Election Court to determine that issue. I make no order as to costs. Orders shall issue accordingly.

Delivered, dated and signed this 5th day of September 2017.

S. N. Mutuku

Judge