Benjamin v Attorney General & 2 others; Malokwe & 53 others (Interested Parties) (Petition E207 of 2022) [2023] KEELRC 962 (KLR)

The notice of appeal of 30.11.2022 targets the ruling of Nduma J in Petition E186 of 2022 (as consolidated), not the present petition, which is a fresh cause of action. Order 42 rule 6, invoked by the applicant, concerns stay of execution. A proper stay would have to be sought under Rule 5(2)(b) of the Court of Appeal Rules and would spread to the court from which the appeal lies, not a separate fresh proceeding. The application was therefore misconceived and unfounded.

Section 6(9) of the Act entitled the petitioner to provide the Clerk, before the approval hearing, with sworn evidence contesting candidates' suitability. Nothing on record showed he made such presentations or was denied the opportunity. The doctrine of justiciability and the availability of an alternative and more convenient forum bar the court's intervention, though the court retains jurisdiction for judicial review on merits for unreasonableness, illegality, unconstitutionality and manifest injustice. The findings did not apply to the 52nd interested party whose appointment was not shown to be amenable to the Act's procedure.

Applying the definition of locus standi in Alfred Njau v City Council of Nairobi, the court found the petitioner's standing constitutionally granted under Articles 22 and 258 given the public interest nature of the challenge, and the applicant established no justification to defeat it.

Relying on Narok County Government v Richard Bwongo Birir, the court held all state officers are servants of the people governed by constitutional and statutory provisions, so the absence of an employer-employee relationship does not oust jurisdiction. The jurisdictional question was also addressed by Nduma J in the consolidated petitions. However, the successful exhaustion objection precludes exercise of that jurisdiction in this petition.