Republic v Independent Electoral and Boundaries Commission; Mwangi (Exparte) [2022] KEHC 10890 (KLR)

Republic v Independent Electoral and Boundaries Commission; Mwangi (Exparte) (Judicial Review Application E004 of 2022) [2022] KEHC 10890 (KLR) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10890 (KLR)

Republic of Kenya

In the High Court at Nyeri

Judicial Review Application E004 of 2022

M Muya, J

June 3, 2022

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS AND IN THE MATTER OF: ARTICLES 10,22,23 (3) (F)47 (I) 50(I) AND 165 (6) 6, 7 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ARTICLES 180 (5) AND 180 (6) OF THE CONSTITUTION OF KENYA AS READ WITH SECTION 43 (5) OF THE ELECTIONS ACT AND IN THE MATTER OF THE FAIR ADMINISTRATION ACT AND IN THE MATTER OF: SECTION 8 AND 9 OF THE LAW REFORM ACT AND IN THE MATTER OF ORDER 53 (I) OF THE CIVIL PROCEDURE RULES 2010 AND IN THE MATTER OF: SECTION 43 (5) OF THE ELECTIONS ACT NO.24 OF 2011 AND NO. 24 OF 2011 AND IN THE MATTER OF: THE REQUIREMENT OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION FOR PERSONS NOMINATED TO THE OFFICE OF THE DEPUTY GOVERNOR TO SUBMIT THEIR RESIGNATION/CLEARANCE LETTER FROM STATE/PUBLIC OFFICE BY 9TH FEBRUARY 2022.

Between

Republic

Applicant

and

Independent Electoral and Boundaries Commission

Respondent

and

Irunga Mwangi

Exparte

Ruling

Introduction 1. This judicial Review application is premised on the grounds that:(a)The Respondent in a gazette Notice No. 4959 required political parties to submit their nominees for County Governor slot contestants and their respective Deputy Governors nominees on the 16th may 2022. (b)In a further communique issued on 27th May 2022 and upon inquiry the exparte applicant was informed that the Respondents required both the Governors and Deputy Governors to among other documents, present during official nomination dates “ resignation/clearance letters from state/public office by 9th February 2022. (c)It is the contention by the applicant that the requirement that a Deputy Governor ought to have resigned from a public office by 9th February, 22 has no legal foundation as Section 43 (5) of the Elections Act refers to “contested” seats and that of a Deputy Governor is not a “contested” one but falls under the process of nomination.

2. It’s on these grounds that the exparte applicant prays for leave to apply for an order of certiorari and prohibition and that leave, do operate as a stay.

3. Mr. Ochieng Opiyo for the Respondents submitted that there is pending matter before the High Court in Nairobi being petition No. E200 of 2022. Moses Kiarie Kuria v IEBC

4. Where the prayers sought are similar to the ones in this Judicial Review application:

Analysis 5. I have had the occasion to peruse the above cited Petition which in the main, seeks conservatory orders to stay the requirement by the Respondent to forward running mates/Deputy Governors who are bound by the provisions of Section 43 (5) of the Elections Act.

6. I, also, have perused the ruling by my brother Mrima J. in which he declined to grant conservatory orders of stay in the Moses Kiarie Kuria case (Supra).

7. Whereas, it is common ground that the parties in the two cases are not the same and that one is in the form of a Petition whereas the other one is in the form of a Judicial Review, I am satisfied that the substratum is the same.

8. They both are anchored on the applicability of Section 43 (5) of the Elections Act on a running mate/Deputy Governor. Though this court is not bound by the findings of a court with equal or similar Jurisdiction, I am of the considered view, and in line with good practice that this Judicial Review application ought to be placed before Mrima J. who is seized with a similar matter, for consideration of consolidating both. This will ensure that there will be no issuance of conflicting orders/findings

9. I accordingly, order that this file be placed before Mrima J. in Nairobi for consolidation with E 200 of 2022. Moses Kuria v IEBC

RULING READ AND DELIVERED IN OPEN COURT ON 3RD JUNE, 2022. HON. JUSTICE M. MUYAJUDGE