Wanjigi v Chebukati & 2 others
The bottom line
#Kenya's Court of Appeal dismissed Jimi Wanjigi's bid to be a presidential candidate, confirming he failed IEBC nomination requirements.
What this practically means
#Executive summary
#Key legal issues
#Whether the judicial review application disclosed grounds for judicial review
It did; the statutory statement and verifying affidavit pleaded illegality, irrationality, unreasonableness, bias and legitimate expectation in sufficient detail, and the learned judge erred in holding otherwise.
The Court examined the statutory statement and found paragraphs 5 to 25 addressed each ground in detail, including violations of Articles 38, 47 and 50. Pleadings are not a fetish; the application cogently disclosed the ordinary grounds and the appellant was entitled to a decision thereon.
Effect of the grant of leave on a later finding of non-disclosure
A court that grants leave cannot thereafter hold the application disclosed no grounds, unless the grant of leave is itself challenged on appeal, which was not done here.
Leave is granted only where a prima facie case is shown; its purpose is to weed out frivolous applications. Having granted leave, the judge implicitly found an arguable case. Grant of leave does not guarantee success, but it precludes a finding of total non-disclosure absent an appeal against the leave order.
The nature and reach of judicial review in Kenya today
The learned judge erred in confining judicial review to pre-2010 limits; the constitutional and statutory landscape now permits, in appropriate cases, merit review of administrative decisions.
Relying on the Supreme Court's decision in Communications Commission of Kenya v Royal Media Services, IEBC v National Super Alliance, Child Welfare Society and Judicial Service Commission v Njora, the Court traced the transformation of judicial review from common law technicalities to constitutional underpinning under Articles 22, 23 and 47 and section 7(2) of the Fair Administrative Action Act.
Whether the appellant held a degree as required by section 22(2) of the Elections Act and regulation 47(1)
He did not; regulation 47(1) as amended in 2017 requires certified copies of certificates, and a completion letter showing he was still a student did not satisfy it.
The Daystar letter by its own terms confirmed the appellant was still a student who had completed coursework, not a degree holder. The CUE letter's relevance was doubtful since regulation 47(2) restricts authentication to bodies not based in Kenya, and the degree had not yet been conferred. Pre-2017 precedent was distinguishable.
Whether the appellant was nominated by at least 2,000 voters in each of a majority of counties
He was not; the lists failed qualitative requirements - illegible, unmatched and non-sequential identification documents - and the IEBC was empowered to vet and analyse them.
Article 137(1), section 23 and regulation 18 demand genuine and verifiable supporters, not a mere numerical list. Article 88(4)(f) vests authority in the IEBC to vet lists, and regulation 43 requires invalidation of non-compliant nomination papers. The numerical confirmation did not preclude later qualitative rejection.
Whether the running mate required nomination by a political party under Article 148
Yes; Article 148(1) requires the running mate to be qualified for nomination as President under Article 137(1), and only the 2,000-voter requirement in Article 137(1)(d) is exempted.
The Court read Articles 137(1) and 148 together: the running mate must be a citizen by birth, qualified to stand for election as MP, and nominated by a political party or be an independent candidate. The appellant's submission that Article 148 required only his own nomination was a selective reading.
Whether the 3rd respondent's decision was tainted by apparent bias
No; the appellant gave no details of the prior representation and produced no material from which a reasonable, fair-minded and informed person would apprehend bias.
Apparent bias is tested objectively. The threshold is high and the onus lies on the party alleging bias. A bare assertion that the chairperson had once acted as advocate for the 1st respondent, without details of the matter, cannot satisfy the test; courts are hesitant to find bias absent convincing evidence.
Legal principles established
#- A judicial review application that discloses the ordinary grounds for judicial review entitles the applicant to a decision on those grounds; a court cannot grant leave and then hold the application disclosed no grounds unless the grant of leave is challenged on appeal.
- Judicial review in Kenya, since the Constitution of 2010 and the Fair Administrative Action Act, is no longer strictly confined to the decision-making process; in appropriate cases it extends to a merit review of the impugned decision.
- A presidential candidate must submit a certified copy of a degree certificate under regulation 47(1) as amended in 2017; a completion letter, transcripts and a CUE letter do not suffice.
- Nomination by 2,000 voters in a majority of counties requires genuine, verifiable supporters with signatures, identification particulars and legible copies of identification documents, not a mere numerical list.
- Under Article 148 read with Article 137(1), a running mate must be a person qualified for nomination as President, including nomination by a political party; only the 2,000-voters requirement is exempted.
- A party alleging apparent bias bears the onus of demonstrating a reasonable apprehension of bias on objective facts; mere suspicion or a bare allegation of prior representation is insufficient.
- There can be no legitimate expectation that a provision of law will be interpreted and applied the same way after it has been amended; clear statutory words override any contrary expectation.
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- HC JR No. E083 of 2022
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (section 3(2)) and Rule 33 of the Court of Appeal Rules, 2022; extempore judgment delivered under Rule 34(7) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjigi v Chebukati & 2 others", Case Analysis (2022). Civil Appeal E404 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/724/eng@2022-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.