Salah Maalim Aliyo v Independent Electoral and Boundaries Commission & United Republican Party 1st Interested Party Sokorey Maalim Issakow , 2nd Interested Party Ibrahim Harma Issak & 3rd Interested Party Farhiya Rashid Kuli [2013] KEHC 3006 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MILIMANI LAW COURTS

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW NO. 236 OF 2013

BETWEEN

SALAH MAALIM ALIYO .............................................. APPLICANT

AND

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION ............................ 1ST RESPONDENT

UNITED REPUBLICAN PARTY ........................ 2ND RESPONDENT

AND

SOKOREY MAALIM ISSAKOW ........... 1ST INTERESTED PARTY

IBRAHIM HARMA ISSAK ..................... 2ND INTERESTED PARTY

FARHIYA RASHID KULI ...................... 3RD INTERESTED PARTY

JUDGMENT

The Applicant in  the Notice of Motion dated 2nd July 2013 seeks to quash the decision of the IEBC Dispute Resolution Committee (“Committee”) of 7th June 2013 declaring the interested parties as nominees to the Mandera County Assembly on a United Republic Party ticket in his place. He contends that his name was on the party list submitted on 30th January 2013.

After the general elections, the petitioner avers that his name was excluded from the nominated members.  He stated in his deposition that, “the interests of minority groups, the Corner Tribe, are not represented in the County of Mandera.  My application seeks that one of the Youth who are female being number 2 and 4 in the special category should be transferred to the gender top up list to create room for representation of marginalised groups in the specialised category.”

The petitioner’s complaint to the Committee was dismissed and he challenges the decision on the grounds that his advocate was permitted to address the Committee for only 3 minutes hence this was inadequate to address his grievance and that the Committee did not give reasons for its decision and that it acted without jurisdiction in approving a list with public officers and failing to ascertain that the gender top-up comprised female nominee only.

The Committee considered the applicant’s Complaint No. 272/2013 and held that the nomination list was in accordance with the law and dismissed it. We have considered the material before us and we find that the application lacks merit.  First, the fact that the time given for submissions was too short is not a violation of the right to a fair hearing.  This right must be assessed in the circumstances of each case and it must be recalled that the Committee has before it the written material which may obviate the need to engage in a lengthened oral hearing.

Second, the IEBC was bound to act upon the list submitted by the party to it within the statutory time provided under section 35 of the Elections Act, 2011.  What the petitioner seeks is a reconstitution of the list which in these circumstances is not permitted.  The constitution of the list is a party matter.

Thirdly, the material regarding the employment status of one of the nominees by way of a letter dated 14th June 2013 was not available to the Committee and cannot constitute a ground for review.

For the forgoing reasons, we dismiss the application with no order as to costs.

DATED and DELIVERED at NAIROBI this 12th July 2013

MUMBI NGUGI

JUDGE

D.S. MAJANJA

JUDGE

W. K. KORIR

JUDGE