Election petitions must comply with the electoral laws, rules and procedures

Ferdinard Ndungu Waititu v Independent Electoral Boundaries Commission
High Court at Nairobi
Election Petition No. 1 of 2013
Mumbi Ngugi J.
March 21, 2013
Reported by Emma Kinya Mwobobia

Issues:
What amounted to official declaration of election results under the electoral law?

What was the prescribed procedure to be applied by the Independent Electoral and Boundaries Commission (IEBC) in the declaration of election results?

Whether the petition challenging the election of the 4th respondent as the Governor of Nairobi County had been filed in accordance with the required procedure of filing election petitions.

Whether the High Court had jurisdiction to hear and determine the election petition on the basis of Article 165(3) (a) of the Constitution of Kenya, 2010.

Election Law – election petition – procedure of filing an election petition – need for the election results to be officially declared through gazettement – requirement to file the petition within twenty eight days from the date of publication of the election results in the Kenya Gazette – where the petitioner had filed the petition on the same day it was gazetted – whether the prescribed procedure under the electoral laws had been followed – Constitution of Kenya, 2010 Article 87(2), Election Act No 24 of 2011 section 76 (1)

Constitutional Law
– election petition – jurisdiction – jurisdiction of the High Court – jurisdiction to hear and determine election petitions – special jurisdiction conferred by the Constitution to hear and determine election petitions – contention by the respondent that the High Court did not have jurisdiction in the matter since it had not been gazetted as an Elections Court as required by the law – whether the High Court had jurisdiction to hear and determine the matter – Elections (Parliamentary and County Elections) Rules 2013

Words and Phrases
– definition – definition of declaration – definition according to the Black’s Law Dictionary – inference from the electoral laws – what amounted to declaration of election results – whether declaration required publication of the election results in the Kenya Gazette.

Held:

1. According to the Black’s Law dictionary, a declaration was a formal statement, proclamation or announcement especially one embodied in an instrument. However, the term must also have been considered in the context of and from the provisions of the law governing elections.

2. The IEBC had to declare the election results by formally publishing the results in the Kenya Gazette. This was borne out of the provisions of the Elections Act which Parliament in accordance with the mandate conferred on it under article 87 (1) of the Constitution had enacted.

3. Section 76 of the Elections Act had vested the jurisdiction in the High Court to hear petitions which had been filed within twenty eight days of publication in the Kenya Gazette. Thus, declaration of election results meant publication in the Kenya Gazette and not simply the announcement of the results at the polling station or tallying center.

4. In order for a petition to be properly before the High Court, it must have been filed within twenty eight days of the publication of the election results in the Kenya Gazette by the Independent Electoral Boundaries Commission.

5. The petition contesting the declaration of the 4th respondent as the Governor of Nairobi County was filed within the time frame provided under Article 87(2) of the Constitution and Section 76 (1) of the Elections Act No 24 of 2011 and was therefore properly before court.

6. The petition, like all petitions challenging election results, must have complied with the rules and procedures set out in the Elections Act and the Elections (Parliamentary and County Elections) Rules (Rules). The Rules applicable at the hearing of the case were contained in Legal Notice No. 44 of 2013 which provided for specific requirements, mechanisms and time frame for the filing, hearing and determination of election petition.

7. The Rules had also contemplated that several steps be taken prior to the hearing of the petition for instance, that the Chief Justice gazettes by name, the judge or magistrate who had the authority to hear an election petition. They had also provided the manner in which interlocutory applications which had arisen in election petitions were to be dealt with during the pre-trial conference pertaining to a specific petition.

8. The jurisdiction to hear determine election petitions was a special jurisdiction that was conferred by the Constitution itself and the manner in which it was to be exercised was ordained by the Constitution when it donated power to Parliament to enact the requisite laws and regulations for its exercise. Such truncation as there may be of the right to approach the court under Article 165 (3) (a) of the Constitution had therefore been done by the Constitution.

9. The petitioner could not have disregarded the electoral laws and cited the provisions of Articles 159 and 165 (3) (a) of the Constitution as empowering him to have done so. Article 165 (3) a)  and all other provisions of the Constitution could not have been read in isolation but must have been read and interpreted in the context of the entire Constitution.

10. The petitioner, by bringing this election petition while relying on the jurisdiction of the High Court under Article 165 (3) (a) of the Constitution, was attempting to circumvent the rigorous rules set out in the Election Act and the Rules.  The Act and the Rules had been enacted in accordance with the dictates of the Constitution in order to ensure the efficient and expeditious disposition of election petitions, taking into account the great public interest.

Petition and Notice of Motion to be heard and determined in accordance with the requirements of the Elections Act and the Elections (Parliamentary and County Elections) Petition Rules, 2013 contained in Legal Notice No. 54 of 2013.

Source: http://www.kenyalaw.org/newsletter/ Issue 12/2013

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