Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT 3. The former directors of the First Defendant could not abuse the due process of the court and subvert the course of justice by manipulating judicial process and then take a moral high ground and claim that they were enforcing their right in the same courts. The High Court had jurisdiction to hear and determine the matter before it especially where it appeared that the due process of the court was being hijacked for unlawful purpose. The High Court had inherent jurisdiction to grant orders to rectify an act which had been done fraudulently and in contempt of its orders. The inherent powers of the High Court would be invoked where it became apparently clear that a party to a suit was bent on manipulating the judicial process for unlawful purpose. 4. The order issued by the High Court in respect of the suit property directing that status quo be maintained and prohibiting any transaction in respect of the suit property pending further orders from the High Court, superceded any other orders issued in the suit by any other Judge. It was therefore clear that the former directors of the First Defendant fraudulently obtained the removal of the court order earlier registered by the plaintiff in the title. 5. The Second Defendant had no legal capacity to pass good title to the Third Defendant when in the first place it had secured the transfer to itself by clear fraud. The Third Defendant’s consolation was that it could secure a refund of the purchase consideration from the Second Defendant. Application allowed, ownership of the suit property would revert back to the First Defendant within fourteen days or in default, the title unlawfully held by any party would be declared cancelled. Registration of a Political Party Isaiah Gichu Ndirangu v Registrar of Political Parties [2010] eKLR Miscellaneous Application 377 of 2009 February 16, 2010 RPV. Wendoh J. High Court at Nairobi (Nairobi Law Courts) Reported by Njeri Githang’a Judicial Review-mandamus-application to compel the Registrar of Political parties to register the Party of Democratic Unity and issue it with a registration certificate- order of prohibition to bar the Registrar from declaring the party unlawful-requirements to be met before a party could be registered-whether the applicant had met all the mandatory requirements Judicial Review-rules of procedure-pleadings- grounds to be relied upon in the Notice of Motion those pleaded in the statutory statement- applicant raising new grounds not pleaded-whether the new arguments were acceptable- Civil Procedure Rules Order 53 Rule 4 (1) Political Party-registration of parties-requirements- a proposed party to have not less than two hundred members who were registered voters for purpose of parliamentary elections from each province- where the applicant could not comply with that requirement as the voters register had been done away with following the disbandment of the Electoral Commission of Kenya (ECK)-Constitution of Kenya (Amendment) Act section 41A (d) replacing the ECK with the Interim Independent Electoral Commission of Kenya (IIEC)-the voters register being done away with and IIEC mandated to compile a new register-requirement for registration of parties- Registrar declining to accept the applicant’s documents pending the compilation of a The Hon. Lady Justice RPV. Wendoh fresh register of voters -whether the Registrar had acted illegally in declining to register the applicant’s party- Constitution of Kenya (Amendment) Act, 2008, section 41A (d)-Political Parties Act sections 18, 19 and 23 The applicant, the Chairman of the Party of Democratic Unity, sought orders of judicial review to compel the respondent, the Registrar of Political Parties, to register the party and issue it with a registration certificate and an order of prohibition to bar the Registrar from declaring the party unlawful. The applicant had previously written to the Registrar on December 19, 2008 seeking extension of time of 180 days so that the party could comply with Section 23 of the new Political Parties Act. However, on December 30, 2008 the respondent instructed the applicant to amend the party’s constitution as required by section 9 of the Act within 3 months. He duly complied and amended the party’s constitution and the respondent received it and stamped it and asked for the list of voters as required by Section 23 of the Political Parties Act. He submitted his documents on June 5, 2009 and applied for full registration but the Registrar declined to accept the documents for reasons that the Electoral Commission of Kenya had been disbanded. The applicant alleged that the Registrar was malicious because that was not a new party but only that it had not been issued with registration certificate within the time stipulated by law. 70
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT In opposing the Notice of Motion, the Registrar deponed that she had written to the Party highlighting the transitional provisions under section 44 of the Political Parties Act. The provisions specified that the political parties that were in existence when the Act came into force had 180 days to apply for full registration and the period was to expire on December 31, 2008. However, the applicant failed to meet that deadline and the voters register ceased to exist after the Constitutional Amendment Act, 2008 came into force on December 29, 2008 which amended Section 41 of the Constitution creating the Interim Independent Electoral Commission (IIEC), which became the successor of the Electoral Commission of Kenya (ECK). The ECK having been disbanded, the Voters’ Register was done away with. Held: 1. Section 18 of the Political Parties Act required all organizations which functioned as political parties to be registered in accordance with the Act. Subsection (2) allowed for provisional registration of a proposed party. A provisional registration was required to be accompanied with the party’s Constitution and then comply with Section 19. Section 23 set out the requirements for full registration. A proposed party must have been previously registered, with not less than two hundred members who were registered voters for purposes of parliamentary elections from each province. The applicant having had provisional registration, he had to comply with the rest of the requirements before full registration. 2. The applicant could not comply with Section 23 of the Political Parties Act in order to be fully registered as by June 2009 when he submitted his documents, the Constitution of Kenya (Amendment) Act had come into operation and the ECK and the voters register had been done away with. There was nothing to compare with to confirm the membership of the party. The Registrar was therefore correct in declining to accept the applicant’s documents till the IIEC could come up with another voters’ register. 3. Section 41 A (d) of the Constitution of Kenya (Amendment) Act, 2008 gave the IIEC the mandate to create a new voters register and undertake registration of voters. The applicant had been caught up in the web of time between the repealed provisions of the Constitution and the coming into force of the Political Parties Act. 4. The Registrar had not acted illegally but strictly in accordance with the law. The party could not be registered in contravention of to the requirements for registration. For an act to be illegal the Registrar had to have acted contrary to the provisions of the law or misunderstood the law that regulated his decision in this case, the Political Parties Act and the Constitution of Kenya (Amendment) Act, 2008. 5. By ‘illegality’ as a ground for judicial review the decision maker had to understand correctly the law that regulated the decision making power and had to give effect to it. The Registrar’s decision was within the law and could not be faulted. 6. The applicant had to wait for the IIEC to come up with another voters register so that he could comply with sections 18 and 23 of the Political Parties Act. 7. In Judicial Review the grounds to be relied upon in the Notice of Motion were those pleaded in the statutory statement and none could be introduced during the hearing of the Notice of Motion. Order 53 Rule 4 (1) of the Civil Procedure Rules barred an applicant from relying on any other grounds except those set out in the statement. The applicant purported to introduce other grounds of malice or bias in his arguments but those were not pleaded and hence were unacceptable. Application dismissed. Advocates Isaiah Gichu Ndirangu for Applicant Mr. Kipkogei for Respondent Jurisdiction of a Provincial Land Disputes Committee Issack Maina Murathe v Jesidah Wanjiru Murathe Civil Appeal No 87 of 2007 High Court at Embu Karanja. J February 16,2010 Reported by Andrew Halonyere Land law –jurisdiction of the Provincial Land Disputes Committee – where the Provincial Land Disputes Tribunal directed the sub-division of the appellant’s land and issuance of land title deeds to the respondent – whether the Tribunal had jurisdiction to interfere with the appellant’s proprietory rights – whether the Tibunal acted ultra vires the Land Disputes Tribunals Act –whether the appeal had merit- Land Disputes Tribunal Act of 1990 section 3(1). The Provincial Land Disputes Committee directed that the appellant’s land be sub-divided and the respondent be given one acre and title documents to the land. Being aggrieved, the appellant brought an appeal to the High Court challenging the decision of the committee. Issue 12: April-June 2010 71
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Bench Bulletin - Issue 12 - Kenya Law Reports

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