Rose Moturi Mwene v Independent Election & Boundaries Commission & 5 others [2018] KEHC 3585 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

PETITION NO. 10 OF 2018

ROSE MOTURI MWENE..........................................PETITIONER

VERSUS

THE INDEPENDENT ELECTION AND

BOUNDARIES COMMISSION & 5OTHERS.....RESPONDENT

RULING

I have considered the preliminary objection raised by the 3rd Respondent and I find as follows. The petition that is filed by the applicant/ petitioner mirrors exactly what is filed in Election Petition Appeal 3 of 2018. The issues raised are on nomination of the applicant and the 3rd Petitioner which is the subject of EPA 3 of 2018. In my view the Constitution and Election laws are clear on the nomination process and there is no need of interpretation as sought by the Applicant. I agree with Mr. Oguttu’s submissions that an election can only be impeached by way of an Election Petition and not a constitutional petition. The Electoral laws are very specific on the recourse to be taken. From the pleadings 3rd Applicant is seeking conservatory orders in the nature of a stay which are directed at the Gazette notice number 3216 which is the subject of the Election Petition Appeal No. 3 of 2018.

The issues been raised in the petition are res judicata in that they touch on the nomination of the applicant/petitioner and the 3rd Respondent. Lastly the applicant has even failed to frame the constitutional issues.

The Petition is an abuse of the court process. The preliminary objection is upheld and is struck out. Each party to bear its own cost.

Dated signed and delivered this 10th day of August 2018.

HON. R. E. OUGO (MRS)

JUDGE

In the presence of;

Mr. Onyancha h/b for Mr. Nyamweya & Mr. Momanyi For the Petitioner

Mr. Onchwang’i h/b for Mr. Oguttu                    For the 3rd Respondent

Mr. Onyancha h/b for Mr. Ondimu                         For the 4th Respondent

Ms Rael                                                                    Court/Clerk