United Democratic Alliance Party v Kenya Human Rights Commission & 8 others [2022] KECA 813 (KLR)

United Democratic Alliance Party v Kenya Human Rights Commission & 8 others (Civil Application E288 of 2022) [2022] KECA 813 (KLR) (8 August 2022) (Ruling)

Neutral citation: [2022] KECA 813 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E288 of 2022

FA Ochieng, LK Kimaru & M. Gachoka, JJA

August 8, 2022

Between

United Democratic Alliance Party

Applicant

and

Kenya Human Rights Commission

1st Respondent

Katiba Institute

2nd Respondent

Commission Of Jurists (Icj)-Kenya

3rd Respondent

Haki Yetu …………………………………………………… 4Th Respondent Inuka Kenya Ni Sisi Ltd

4th Respondent

Education Consortium

5th Respondent

Boundaries Commission

6th Respondent

Wafula Wanyonyi Chebukati ………………………9Th Respondent The Attorney General

7th Respondent

Crawn Trust

8th Respondent

Human Rights

9th Respondent

Ruling

1. We have considered the Applicant’s application was is predicated upon Rule 5(2)(b) of the Court of Appeal Rules,among other provisions of the law. We have perused the written submissions filed in favour and in opposition to the application. We have further considered the oral submissions made by Mr. Mutuma for the Applicant, Mr. Mwangi for the Respondents, other than the 8th, 9th, 10, 11th, 12 and 13th Respondents, Mr. Mukele for the 8th and 9th Respondents and Mr. Mbaji for the 12th Respondent. We have also considered the authorities cited by the parties, particularly this this Court’s decision of National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR

2. We are giving this ruling in a short form under Rule 34(1) of the Court of Appeal Rules, 2022 due to the urgency of the matter and the fact that the general elections are scheduled to be held tomorrow i.e 9th August, 2022. The reasons for the ruling shall be rendered on 28th August, 2022.

3. Upon careful consideration of issues in contention, we are of the considered opinion that the applicant has made a case for the grant of stay on the judgment of the High Court delivered on 4th August, 2022 in Nairobi Constitutional Petition No. E306 of 2022 Kenya Human Rights Commission & 6 Others vs. Independent Electoral and Boundaries Commission & 2 Others Interested partiespending the hearing and determination of the intended appeal.

4. For the avoidance of doubt, we reiterate the decision of this Court in National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 Others [supra]in respect of identification of voters shall guide the Independent Electoral and Boundaries Commission (the Commission).

5. The above decision incorporated the Memorandum of the Commission dated 27th July, 2017 which was consented to by the parties to the suit which provided that:a.“Presiding Officers must ensure that voters are identified by Biometrics upon production of an identification document used during registration. Biometric verification is a primary mode of identifying voters.”b.“Where a voter cannot be identified using Biometrics, then the Presiding Officer shall use a complementary mechanism of alphanumeric search in the presence of the agents and the voter shall fill form 32A before being issued with the six ballot papers.”c.“The Presiding Officer will resort to the use of the printed register of voters after approval from the Commission upon confirmation that the KIEMS Kit has completely failed and that there is no possibility of repair or replacement.”d.“The contents of the said Memo dated 27th July, 2017 shall be adhered to by all concerned persons in application of Regulations 69 and 83 of the Elections (General) Regulations, 2012. ”

6. The costs of the application shall abide the outcome of the intended appeal.

7. It is so ordered.

DATED and DELIVERED at NAIROBI this 8TH DAY OF AUGUST, 2022. F. OCHIENG......................................JUDGE OF APPEALL. KIMARU....................................JUDGE OF APPEALL. GACHOKA....................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRARNRB Civil Application No. E288 of 2022Ruling of the Court