Aluochier v Independent Electoral and Boundaries Commission & 17 others

The Court held that although Article 47 and the Fair Administrative Action Act affirm the right to fair administrative action enforceable by judicial review, neither provides an independent procedure for instituting such proceedings. In the absence of specific rules, Order 53 of the Civil Procedure Rules necessarily applies. Its prescriptive provisions are mandatory, and non-compliance renders the Motion incompetent and fatally defective, warranting dismissal.

Relying on the Supreme Court's decision in Raila Odinga v IEBC and Kiage JA's opinion in Nicholas Salat v IEBC, the Court held that the oxygen principle was never meant to oust the obligation of litigants to comply with procedural imperatives or to destroy rules of procedure. Mandatory procedural rules serve fairness, certainty and even-handedness and cannot be treated as optional.

The Court noted that the supporting affidavit contained no annexures relating to the decision the applicant sought to rely upon. Without marked and sealed annexures, the application stood bare and devoid of substance for review. This independent defect would have rendered the Motion defective and fatally incompetent even if the correct procedure had been used.

The Court framed the decisive question as whether the learned Judge was correct in dismissing the Motion for want of compliance with mandatory judicial review procedure. It clarified that what was before it was not a second appeal from the IEBC Committee's decision, so matters of law relating to that decision did not fall for consideration; the appeal stood or fell on the procedural competency finding.