Eunice Khalwali Miima v The Independent Electoral and Boundaries Commission
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of judicial review under the Constitution of 2010
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
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.
Whether the trial court judiciously exercised its discretion
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.