Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR

Key Facts

Issues

• Whether Section 83 of the Elections Act, 2011 is in contravention of Articles 81 and 86 of the Constitution
• Whether the declaration of the election of the applicant as the duly-elected Governor of Meru County was in contravention of Article 81 of the Constitution
• Whether the appeal is in compliance with the Supreme Court's jurisdictional mandate
• Whether the Court of Appeal upheld the provisions of Article 50 of the Constitution
• Whether to stay the process of swearing-in the Speaker of Meru County Assembly as Governor
• Whether the appeal merits admission to hearing
• Whether to grant interlocutory stay orders on the scheduling of fresh gubernatorial elections
• Whether the declaration of the election of the applicant as the duly-elected Governor of Meru County was in contravention of Article 38 of the Constitution
• Whether the 2nd respondent discharged its constitutional obligations under Articles 81, 86, 88 (4), 249, and 252 of the Constitution
• Whether the Court of Appeal contravened Article 164(1)(b) of the Constitution by disregarding Section 85A of the Elections Act

Holdings

• The applicant's Notice of Motion of 20th March, 2014 is allowed.
• The first respondent's Notice of Preliminary Objection of 21st March, 2014 is disallowed.
• Conservatory order issued against the Independent Electoral and Boundaries Commission declaring Meru County Governor's seat vacant pending the appeal.
• The costs of this application shall abide the Court's decision in the appeal.
• The Registrar is directed to prioritize the hearing and disposal of the appeal and place the file before the Chief Justice for a full Bench empanelment.
• Conservatory order issued against the Independent Electoral and Boundaries Commission setting in motion the process of gubernatorial election for Meru County pending the appeal.
• Conservatory order issued against the Speaker of the Meru County Assembly assuming the office of Governor pending the hearing and determination of the appeal.
• Execution of the Court of Appeal's judgment and order of 12th March, 2014 is stayed pending the hearing and determination of the appeal.

Remedies

• A conservatory order issues against the Independent Electoral and Boundaries Commission (IEBC) from declaring the Meru County Governor's seat vacant pending the appeal.
• The first respondent's Notice of Preliminary Objection dated 21st March 2014 is disallowed, confirming the Supreme Court's jurisdiction to entertain the appeal.
• A conservatory order prohibits the Speaker of the Meru County Assembly from assuming the office of Governor in an acting capacity until the appeal is resolved.
• The Registrar is directed to make arrangements for the hearing and disposal of the appeal with the highest priority.
• The costs of this application are deferred pending the Court's decision on the substantive appeal.
• The file is placed before the Chief Justice and President of the Court to empanel a full Bench for the appeal proceedings.
• A conservatory order stops the Independent Electoral and Boundaries Commission (IEBC) from announcing or conducting gubernatorial elections for Meru County pending the appeal.
• The applicant's Notice of Motion is allowed, and execution of the Court of Appeal's judgment dated 12th March 2014 is stayed pending the hearing and determination of the appeal.

Legal Principles

• The Supreme Court issued interim injunctions (stay orders) to halt the Independent Electoral and Boundaries Commission (IEBC) from declaring the gubernatorial seat vacant or conducting fresh elections. The Court emphasized the public interest in conserving resources and ensuring the appeal was not rendered nugatory.
• The case involved a dispute over the burden of proof, where the applicant contended that the Court of Appeal improperly shifted the evidentiary burden onto him, contravening constitutional principles of fair trial under Articles 50 and 25 of the Constitution. The Supreme Court acknowledged this as a significant legal issue.
• The Supreme Court of Kenya employed a purposive approach in interpreting Article 163(4)(a) of the Constitution, emphasizing that the appellate jurisdiction must be guided by the purpose and principles of the Constitution. This approach was central to the Court's decision that the appeal raised constitutional issues, thereby justifying its intervention.

Precedent Name

• Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board
• Peter Oduor Ngoge v. The Hon Francis Ole Kaparo & 5 Others
• Board of Governors, Moi High School Kabarak & Another v. Malcolm Bell
• Winnie Babihuga v. Masiko Wimmie Komuhangi & Others
• Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others

Cited Statute

• Elections Act, 2011
• County Governments Act, 2012
• Constitution of Kenya, 2010
• Supreme Court Act, 2011

Judge Name

• Senior Counsel Wanjala
• Justice J.B. Ojwang

Passage Text

• Applying these principles to the matter at hand, we hold that this appeal, indeed, falls within the ambit of Article 163(4) (a) of the Constitution.
• Execution of the Judgment and Order of the Court of Appeal... shall rest in abeyance pending the hearing and determination of the appeal.
• The Court of Appeal's decision and the appeal therefrom, have raised issues of first impression as to the interplays in a wide range of constitutional provisions... this Court has the responsibility to hear the parties and to interpret the Constitution as appropriate.