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Court of AppealDismissedCivil Appeal No. 263 of 2017· [2018] KECA 688 (KLR)

Eunice Khalwali Miima v The Independent Electoral and Boundaries Commission

Court of Appeal of Kenya
21 March 2018
4,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed an appeal against IEBC clearance because the record was missing the complaint and decision being challenged.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Gatembu Kairu and M'inoti, JJ.A) dismissed an appeal by Eunice Khalwali Miima against the High Court's refusal of judicial review orders of certiorari and mandamus sought to quash the IEBC Dispute Resolution Committee's dismissal of her complaint over the rejection of her nomination as UDP candidate for Kakamega County Women Representative in the 2017 General Election. The Returning Officer had rejected her clearance because her resignation letter recorded a resignation date of 25th May 2017, past the statutory deadline of 8th May 2017; she attributed this to a typographical error. The Court accepted the appellant's submission that the High Court took too narrow a view by confining judicial review to the decision-making process and ignoring the constitutional provisions cited, including Articles 47 and 50, and that the expanded, constitutionally underpinned scope of judicial review endorsed in IEBC v NASA and Child Welfare Society entitled it to interfere. However, the appeal failed because the record did not contain the complaint lodged with the DRC, its proceedings or its decision, leaving only bare oral assertions. Without those documents the Court could not determine whether the appellant was afforded a hearing or whether the Returning Officer's justification accorded with law; the factual and legal basis for judicious exercise of discretion was lacking and the appellant was responsible. The appeal was dismissed with each party bearing its own costs of the appeal and in the court below.

Key legal issues

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01

Scope of judicial review under the Constitution of 2010

Holding

Judicial review in Kenya has constitutional underpinning fused with common law judicial review; the trial court erred in taking a narrow, merits-only-process view

Reasoning

The Court endorsed the Supreme Court's holding in Communication Commission of Kenya v Royal Media Services and the IEBC v NASA decision that judicial review is now anchored in Articles 22, 23 and 47 and the Fair Administrative Action Act, and that common law Order 53 remedies are part of constitutional remedies. The High Court thus erred in confining itself to the classic three 'Is' and omitting consideration of the constitutional provisions cited in the application.

p. 4
02

Whether the trial court judiciously exercised its discretion

Holding

Although the trial court took a narrow view and interference would have been justified, the appeal failed because the record lacked the essential DRC complaint, proceedings and decision

Reasoning

The Court found it was entitled to interfere since the trial court ignored the constitutional provisions cited. However, neither the complaint lodged with the DRC nor its decision was on the record, so the Court could not examine whether the appellant was heard or whether the Returning Officer's justification accorded with law. The factual and legal basis for judicious exercise of discretion was lacking and the appellant bore responsibility for the omissions.

p. 5

Legal principles established

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  • Kenya has one, not two mutually exclusive systems of judicial review; common law and constitutional/statutory judicial review are fused and complementary
  • An appellate court may interfere with a discretionary decision of the High Court only on the established grounds of misdirection in law, misapprehension of facts, taking into account or failing to take into account relevant considerations, or that the decision is plainly wrong
  • A litigant seeking review of an electoral dispute determination must place the underlying complaint, proceedings and decisions before the appellate court; bare oral assertions cannot ground interference

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party shall bear its own costs of the appeal and in the court below
On appeal from
High Court of Kenya at Nairobi
Judicial Review Misc. Appl. No. 357 of 2017
Jurisdiction invoked
First appeal against an exercise of judicial review discretion by the High Court, pursuant to the Court of Appeal Rules (Rule 29(1) invoked by the Court); constitutional underpinning of judicial review in Articles 22, 23, 47 and 88(4)(e) of the Constitution discussed

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Eunice Khalwali Miima v The Independent Electoral and Boundaries Commission", Case Analysis (2018). Civil Appeal No. 263 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/688/eng@2018-03-21

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