Jane Cheperenger Ingo v Independent Electoral & Boundaries Commission,United Republican Party & Irine Kimutai Chesang (Civil Appeal 200 of 2013) (Civ) [2013] KECA 58 (KLR)
The bottom line
#Kenya's Court of Appeal revoked a county assembly nominee's election because she wasn't a registered party member, and rebuked a High Court judgment that gave no reasons.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court's judgment dismissing the judicial review application was defective for lack of reasons
Yes. The High Court disposed of the motion in two sentences with no background facts, questions for determination, or reasons, contrary to Order 21 Rule 41 of the Civil Procedure Rules and Section 169 of the Civil Procedure Act.
The Court held that although no issue was taken with the judgment's content, its appellate jurisdiction obliged it to point out apparent errors. A judicial review court, as the constitutional supervisor of administrative bodies, ought to have examined whether the IEBC acted in excess of jurisdiction, in violation of natural justice or in contravention of the law. Heavy caseloads and strict statutory timelines provide no justification for dispensing with due process.
Whether the appellant was denied a hearing by the IEBC Committee
No. On assessment of the record, the appellant was heard twice and had the opportunity to present documentary evidence supporting her claim.
The appellant appeared before the Committee twice, placing before it the party list, the minutes of the Bungoma County officials' meeting, the party's letter requesting substitution, the Registrar of Political Parties' letter confirming the 3rd respondent was not a party member, and IEBC's confirmation that the 3rd respondent was its polling clerk. The natural justice ground therefore failed.
Whether the IEBC had jurisdiction over nomination disputes and whether it exceeded it
The IEBC had jurisdiction to entertain nomination disputes, but on the evidence it exceeded its jurisdiction or failed in its duty by publishing the 3rd respondent despite uncontroverted evidence that she was not a URP member and was an IEBC employee.
Article 88 of the Constitution and Section 34(6) of the Elections Act confer on the IEBC obligations to receive and vet party lists and to settle nomination disputes, including ensuring nominees are members of the nominating party under Section 34(8) of the Political Parties Act. The Registrar's records showed the 3rd respondent was not a member of any party as at 30th April 2013, and the Fourth Schedule to the IEBC Act prohibited IEBC staff from being nominated by a political party. The IEBC ought to have rejected her name under Regulation 54 of the Election (General) Regulations, 2012.
What remedies follow from the defects in the nomination
The Committee's decision should have been quashed by certiorari and the Committee directed by mandamus to seek a fresh list from URP; the nomination and election of the 3rd respondent are revoked and URP must conduct fresh nominations.
With the material placed before it, the High Court ought to have granted certiorari and mandamus. The Court, allowing the appeal, set aside the High Court's dismissal, allowed the motion, revoked the 3rd respondent's nomination and election, and ordered URP to conduct fresh nominations and submit a nominee to the IEBC within fifteen days.
Legal principles established
#- A judgment must contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such determination; a terse decision without reasons is an error an appellate court is duty-bound to point out.
- There cannot be an alternative to due process by the courts, notwithstanding the pressure of strict statutory timelines.
- Certiorari issues to quash a decision made without or in excess of jurisdiction or where the rules of natural justice are not observed; mandamus commands an inferior tribunal to perform a public duty it has failed to perform.
- The Registrar of Political Parties is the conclusive authority on the question of party membership, and a nominee must be a member of the nominating party on the date of submission of the party list.
- The IEBC has jurisdiction to entertain disputes arising from nominations, given its constitutional and statutory obligations to receive party lists, vet nominees and settle electoral disputes.
Court orders
#- 1.Appeal allowed
- 2.Decision of the High Court dismissing the appellant's notice of motion set aside
- 3.The appellant's notice of motion allowed
- 4.Revocation of the nomination and election of the 3rd respondent
- 5.URP to conduct fresh nominations and submit its nominee to the IEBC within fifteen (15) days from the date of the judgment
- 6.IEBC and the 3rd respondent to bear the costs of the appeal
- On appeal from
- High Court
- Judicial Review Cause No. 216 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the High Court in Judicial Review Cause No. 216 of 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Cheperenger Ingo v Independent Electoral & Boundaries Commission,United Republican Party & Irine Kimutai Chesang (Civil Appeal 200 of 2013) (Civ) [2013] KECA 58 (KLR)", Case Analysis (2013). Civil Appeal No. 200 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/58/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.