Monicah Gathoni Githae & another v Independent Electoral and Boundaries Commission & 5 others [2018] KEMC 56 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Error apparent on the face of the record
No error was established; the 1st petitioner had sworn a supporting affidavit found on pages 32 to 42 of the petition, and the applicant did not demonstrate how the court was mistaken
The court found that the ruling of 6th December 2017 correctly recorded that both petitioners swore supporting affidavits, and the 1st petitioner attached her supporting affidavit to her replying affidavit. Citing Michael Moliga and National Bank of Kenya Ltd v Njau, the court held that an error apparent must be self-evident; the applicant did not point to any such error and was in effect seeking an appeal against the ruling, which review jurisdiction does not permit.
Sub judice / abuse of process arising from High Court Constitutional Petition No. 431/2017
The two petitions are not substantially the same: the parties differ (the 1st petitioner and the 3rd to 6th respondents are not parties to the High Court petition) and the reliefs differ (nullification of nominated members vs disbanding the entire County Assembly)
The court held that similarity of subject matter alone does not establish sub judice; the parties and reliefs were not identical. No orders from the High Court were attached, and the 2nd petitioner claimed the High Court petition had been abandoned. Dismissal on this ground could cause injustice; the appropriate remedy would have been an application for a stay, which was not sought.
Discovery of two elected members living with disability as new and important matter
Rejected as a ground of review: the 4th respondent, by then a sworn member of the Assembly, ought to have known the composition of the Assembly; the matter required evidence at the hearing; and the two members were elected while the petition targets nominated members
The court held the information was not new since the applicant had been sworn in as a nominated member before filing his response and conducted no due diligence. No evidence of the nature of disability was disclosed. The petitioners challenge nomination under special seats, and the 2nd petitioner filed under the youth category, so the alleged discovery would not justify striking out the petition.
Legal principles established
#- A review for error apparent on the face of the record requires an error that is self-evident and does not require elaborate argument; it is not enough that another judge could have taken a different view
- A court cannot exercise review jurisdiction to sit on appeal over or vary its own ruling merely because another view was possible or new litigation strategies emerge
- Review will not issue on 'new and important matter' that the applicant, exercising due diligence, could have known at the time of the order
- Matters requiring proof by evidence cannot be determined on an interlocutory review application
Court orders
#- 1.Dismissal of the Notice of Motion dated 18th December 2017 and filed on 19th December 2017
- 2.Costs of the application to the petitioners
- 3.The election petition to proceed for hearing on merit
- Jurisdiction invoked
- Sections 3A and 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 of the Civil Procedure Rules; Article 35(2) of the Constitution 2010 also invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monicah Gathoni Githae & another v Independent Electoral and Boundaries Commission & 5 others [2018] KEMC 56 (KLR)", Case Analysis (2018). Election Petition (Nyandarua), ruling on 4th Respondent's Notice of Motion dated 18/12/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/56/eng@2018-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.