Isaack Osman Sheikh v Independent Electoral & Boundaries Commission, The National Alliance Party & The Attorney General
The bottom line
#Kenya's Court of Appeal confirmed that judicial review challenges how decisions are made, not whether they are right, and dismissed a bid to overturn a county assembly nomination.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review jurisdiction
The High Court correctly confined itself to checking the decision for illegality, unreasonableness or procedural impropriety; judicial review is not an appeal and does not permit the court to take over the decision-making power reserved elsewhere
The Court endorsed the High Court's statement of the scope of judicial review and aligned it with Article 165(6) supervisory jurisdiction and the House of Lords authorities Chief Constable v Evans and Ridge v Baldwin, which establish that review targets the decision-making process rather than the decision itself.
Whether the appellant could shift from the gender top-up category to the marginalized category
Having never been presented by his party under the marginalized category, the appellant could not change tune mid-stream and complain on the basis of ethnic marginalization
The record showed the appellant's name was on TNA's Gender Top Up List, not the marginalized category list. The IEBC Disputes Resolution Committee had dismissed his complaint, noting he was male and could not replace a woman on the gender top-up list, and that the Constitution precludes county assemblies from being tied to ethnic composition.
Adequacy of the memorandum of appeal
The memorandum of appeal, being replete with generalized statements, ran afoul of Rule 86(1) of the Court of Appeal Rules requiring concise, distinct grounds without argument or narrative
The Court held that generalized allegations of failure to appreciate constitutional values do not advance a case because they fail to specify the points alleged to have been wrongly decided, as required by Rule 86(1) of the Court of Appeal Rules.
Non-joinder of Rose Wangu Karuri
The failure to name Rose Wangu Karuri, the person who would be directly and adversely affected by the appeal, contravened Rule 77(1) of the Court of Appeal Rules
The Court noted that the person who would be removed and replaced as member of the county assembly was not named as a respondent, contrary to the mandatory requirement that all persons directly affected by an appeal be served with notice, a requirement effectuating natural justice. The Court said no more in view of its ultimate conclusion.
Legal principles established
#- Judicial review under the High Court's supervisory jurisdiction is concerned with the decision-making process, not the merits of the decision, and does not confer power on the court to substitute its own decision
- All persons directly affected by an appeal must be named as respondents and served with notice under Rule 77(1) of the Court of Appeal Rules
- A first appellate court may re-evaluate the evidence before the trial court under Rule 29(1) but will not disturb findings absent a basis to do so
- Article 90(2)(c) excluding county assembly lists from regional and ethnic diversity requirements is not a licence for ethnic hegemony; courts may interfere where intra-county ethnic or regional balance is flouted in party lists
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The appellant to pay the costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Judicial Review No. 160 of 2013
- Jurisdiction invoked
- First appeal under Rule 29(1) of the Court of Appeal Rules; the High Court's supervisory jurisdiction under Article 165(6) of the Constitution was under review
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nkowua v Independent Electoral and Boundaries Commission & 4 others (Election Petition E004 of 2022) [2023] KEMC 8 (KLR)[2023] KEMC 8 (KLR)28 Feb 2023
- Katangie v Orange Democratic Movement Party & 2 others; Nchoe & 2 others (Interested Parties) (Election Petition E005 of 2022) [2023] KEMC 7 (KLR)[2023] KEMC 7 (KLR)20 Feb 2023
- Republic ex parte Caroline Mangala t/a Hair Works Saloon v Anti-Counterfeit Authority[2019] KEHC 12010 (KLR)20 Nov 2019
- Republic v Kenya School of Law & Council of Legal Education, Ex-parte Janerose Nanjira[2016] KEHC 7629 (KLR)14 Apr 2016followed
- Waititu v Boundaries Commission (IEBC) & 8 others (Civil Appeal 324 of 2013) [2014] KECA 615 (KLR)[2014] KECA 615 (KLR)13 May 2014
Cite this brief
#Cite this brief
Caselaw, "Isaack Osman Sheikh v Independent Electoral & Boundaries Commission, The National Alliance Party & The Attorney General", Case Analysis (2014). Civil Appeal No. 180 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/857/eng@2014-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.