Mukinginyi Walter Trenk v Independent Electoral & Boundariescommission [2017] KEHC 4246 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA AT NAIROBI

JR APPLICATION NO. 426 OF 2017

MUKINGINYI WALTER TRENK………….......…………...……..APPLICANT

VERSUS

THE INDEPENDENT ELECTORAL &

BOUNDARIESCOMMISSION……………………………….RESPONDENT

JUDGMENT

1. The applicant herein seeks judicial review orders of certiorari, mandamus and prohibition against the Independent Electoral and Boundaries Commission (IEBC), hereafter referred to as the respondent. He would like the decision of the respondent dismissing his complaint for want of prosecution recalled and quashed. He would also like to have the respondent compelled to receive and accept his nomination papers as senatorial candidate for Nairobi County on a United Democratic Party.

2. The applicant seeks judicial review orders. The procedure for seeking such orders is provided for in Order 53 of the Civil Procedure Rules. The process envisages two stages. In stage one, the applicant moves the court by way of chamber summons for leave to apply for the judicial review orders that he desires. Stage two is activated by grant of the leave, where the applicant is granted permission to bring the substantive application by way of a Motion. I have scrupulously perused the file of papers before me. I have not come by any chamber application for leave to bring a judicial review application. Neither have I seen any orders made by this court granting such leave. The applicant moved the court straightaway for the substantive orders without first seeking and obtaining leave as required by the law.

3. I am alive to the provisions in Article 159(2) of the Constitution, that justice ought to be administered without undue regard to technicalities of procedure. That provision however does not cast procedure to the dustbin. Procedure remains the handmaiden of justice. Citizens of a country that purports to be governed by the rule of law must be ready to abide by whatever rules the state has laid down to guide its affairs, that should include how suits are to be commenced and clearance to contest for elected positions in public service

4. Even if I were to be persuaded that the suit before me is competent, but I am not so persuaded, the orders sought are clearly not for granting. Judicial review orders are available against defective or faulty processes of administrative bodies exercising a quasi-judicial function. The applicant says that his suit before a tribunal of the respondent was dismissed for want of prosecution. He argues that the tribunal ought not to have dismissed his complaint; ostensibly it should have determined it without hearing him. He had a filed a case before the tribunal, it was his duty to prosecute it.  Failure to attend the tribunal to argue one’s case invites the inevitable consequence of dismissal of the case. The tribunal cannot be faulted at all with the procedural step it took of dismissing the complaint.

5. His other substantial ground appears to be that when he presented his nomination papers to the respondent’s returning officer for clearance the papers were declined on the ground that he did not have a cheque which was a requirement under the nomination rules. He concedes that he did not have any cheque with him at the time and argues that the respondent acted in abuse of procedure in rejecting his papers. If anything, it is the applicant who was flouting the rules. He was required to pay a fee for his clearance, yet at that critical moment he did not have the money, it followed naturally that he was not qualified for nomination or clearance without paying the fee. The fact that he had the cheque ready but he lost it or it was stolen or he was robbed of it, are excuses that are neither here nor there. The obligation was to pay the requisite fee, and without it there could be no clearance. The respondent certainly did not abuse procedure in any way.

6. On the whole, it is my finding that the Motion dated 30th June 2017 having been filed without leave of court was so filed in abuse of court process. The suit before me is incompetent, and it must suffer the fate of being dismissed. I hereby accordingly dismiss the suit herein. There shall be no order as to costs.

DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF JULY, 2017.

W. MUSYOKA

JUDGE