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Court of AppealDismissedCivil Appeal No. 37 of 2014· [2015] KECA 1005 (KLR)

Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & Another

Court of Appeal
21 January 2015
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
2,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that challenges to a gazetted county assembly member's seat must go through an election petition, not judicial review.

What this practically means

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Executive summary

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The appellant lodged a judicial review application in the High Court seeking certiorari to quash the IEBC's decision gazetting the 2nd respondent as the nominee for marginalized persons to the Isiolo County Assembly, contending the nomination was unreasonable, unfair, and that the 2nd respondent was not from a marginalized community. IEBC raised a preliminary objection that judicial review was the wrong procedure, the proper route being an election petition under Section 75(1A) of the Elections Act before a Resident Magistrate's Court designated by the Chief Justice. Makau, J. upheld the objection and dismissed the application, holding that a gazetted member of a county assembly is deemed elected and can only be challenged by election petition. On appeal, the Court of Appeal (Visram, Koome & Otieno-Odek, JJ.A.) framed two issues: whether the High Court has jurisdiction over county assembly membership questions, and whether judicial review is an alternative procedure for that purpose. Applying the Supreme Court's jurisdictional principles and Lillian 'S', the Court held that Section 75(1A) vests exclusive jurisdiction in the Resident Magistrate's Court and that the High Court has no original jurisdiction over such questions. It adopted Rose Wairimu Kamau, reaffirming that challenges to a gazetted member's membership must proceed by election petition. The Court held that Article 159 and the overriding objective do not confer jurisdiction or shelter a litigant who chooses the wrong procedure, and that using judicial review to circumvent the election petition route is a mischief to be forestalled. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction of the High Court over county assembly membership questions

Holding

Section 75(1A) of the Elections Act vests exclusive jurisdiction over the validity of election of a member of a County Assembly in the Resident Magistrate's Court designated by the Chief Justice; the High Court has no original jurisdiction.

Reasoning

The Court applied the principle that jurisdiction flows from the Constitution or legislation and cannot be assumed by interpretive craft. Section 75(1A) is express and mandatory. Since a gazetted nominee is deemed an elected member, the question of membership falls squarely within that section, leaving no room for the High Court's supervisory jurisdiction in the first instance.

p. 4
02

Judicial review as an alternative procedure to an election petition

Holding

Judicial review cannot be used to circumvent the statutory election petition procedure; using it to unseat a gazetted member is a mischief the Court will forestall.

Reasoning

The certiorari sought would have had the effect of unseating the gazetted member, thereby litigating the question of membership through an institutional detour. Where statute prescribes a clear procedure for redress, that procedure must be strictly followed; judicial review is not the statutory route for challenging membership to a County Assembly.

p. 5
03

Whether the appellant was condemned unheard / Article 159 technicalities

Holding

A litigant who chooses the wrong forum and procedure cannot claim to have been denied a hearing or invoke Article 159.

Reasoning

Jurisdictional competence and statutory procedure exist to facilitate a fair hearing. Article 159 and the overriding objective are not blanket provisions sheltering a party who disregards the proper forum or prescribed procedure; the appellant's merits were never reached because the application was procedurally misconceived from the outset.

p. 5

Legal principles established

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  • The High Court has no original jurisdiction to determine questions of membership to County Assemblies; such questions are reserved to the Resident Magistrate's Court designated by the Chief Justice under Section 75(1A) of the Elections Act.
  • Once gazetted, nominees to county assemblies are deemed elected members, and any challenge to their membership must be by way of election petition, not judicial review.
  • Article 159 of the Constitution and the overriding objective do not confer jurisdiction where none exists nor shelter a litigant who uses the wrong procedure.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 88(4)(e)
  • Constitution of Kenya, 2010Article 105
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 165(6)
  • Constitution of Kenya, 2010Article 177(1) and (2)
  • Constitution of Kenya, 2010Article 97(1c)
  • Elections Act, 2011Section 34(8)
  • Elections Act, 2011Section 74(1)(2)
  • Elections Act, 2011Section 75(1A)
  • Law Reform ActSections 8 & 9

Cases cited (12)

  • Rose Wairimu Kamau & 3 others – v- IEBC
    C.A No. 169 of 2013

    Gazetted nominees to county assemblies are deemed elected members; challenges to membership must be by election petition

  • In Re The Matter of the Interim Independent Electoral Commission
    S.C., Constitutional Application No. 2 of 2011; [2011] eKLR

    Assumption of jurisdiction by courts is regulated by the Constitution, statute law and judicial precedent

  • Samuel Kamau Macharia & Another .v. Kenya Commercial Bank Limited & 2 Others
    S.C. Application No. 2 of 2012; [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation; it cannot arrogate jurisdiction through interpretation

  • Lillian 'S'
    [1989] KLR 1

    Jurisdiction is everything; without it a court has no power to make one more step

  • National Assembly, In the Matter of James Njenga Karume
    Civil Application No. Nai. 92 of 1962

    Where a clear procedure for redress is prescribed by an Act of Parliament, that procedure should strictly be followed

  • Republic – v- IEBC & 2 Others
    Nairobi JR No. 203 of 2013

    Cited by appellant in support of judicial review as available procedure

  • Imelda Nafula Wanjala – v- IEBC
    Nairobi HC Petition No. 329 of 2013

    Cited by appellant in support of judicial review jurisdiction

  • Kimani Muhoro – v- John Waiganjo & another
    Nyeri Civil Appeal No. 188 of 2010

    Cited by appellant in support of submissions

  • National Gender and Equality Commissions – v- IEBC
    (2013) eKLR

    Cited by 1st respondent on proper procedure for election disputes

  • National Alliance Party & Another – v- Lydia Mathia
    (2013) eKLR

    Cited by 1st respondent on proper procedure for election disputes

  • Francis Gitau Parsimei & 2 others – v- National Alliance Party & 4 Others
    (2012) eKLR

    Cited by 1st respondent on nomination disputes

  • Bernard Samuel Kasinga – v- AG & 7 Others
    Constitutional Petition No. 402 of 2012

    Cited by 1st respondent on statutory dispute resolution procedures

On appeal from
High Court of Kenya at Meru
H.C Judicial Review 25 of 2014
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution; appeal against a ruling in a judicial review matter

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & Another", Case Analysis (2015). Civil Appeal No. 37 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/1005/eng@2015-01-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.