IEBC loses first round in boundaries dispute

The electoral commission has lost the first round of the dispute over vote units after a five-judge bench dismissed their objections to suits filed after the last day of filing petitions.

Justices Mohammed Warsame, Ruth Sitati, Pauline Nyamweya, Hellen Omondi and David Majanja disagreed with the IEBC formula of computation which put the last day for filing an application for review as April 5.

“Going by the Special Gazette Supplement of March 6, the first day of computation was therefore March 8 and 30 days would end on April 8 which was a Sunday, and the subsequent day being the Easter Monday. The last effective date would be April 10,” ruled the judges.

The IEBC had raised an objection seeking the striking out of 12 petitions filed after the expiry of the date set for instituting a court case against the boundaries which according to the Electoral Act is 30 days after the publication of a Gazette notice of the new electoral areas.

Public holiday

The commission told the court that the final report of the new boundaries was published on March 6 and since April 7 was not a public holiday, it was supposed to be the last day of filing petitions and asked the court to dismiss the suits filed on April 10.

The judges ruled that the date which the commission announced the new boundaries in relation to Article 89 of the constitution was irrelevant because it is only after the publication of the report that people became aware of the decision which they have challenged in court.

Article 89 (11) provides that an application for review shall be filed within 30 days of the publication of the decision, and shall be heard and determined within three months of the filing date.

But according to the judges, the commission had 14 days to publish the report after receiving recommendations from parliament but they chose to use only five days.

They ruled that even though the commission had to act quickly within their mandate, the action was prejudicial to many Kenyans whose views ought to have been sought and who legitimately expected the period for consideration of the report as being 14 days.

“In our view, publishing the report within five days instead of 14 after resolution by the National Assembly greatly prejudiced Kenyans. The effect of the prejudice will be an issue of determination during the hearings of the applications,” ruled the judges.

The judges said that Article 89 (11) does not prescribe a mode of approaching the court and that petitioners were at liberty to approach the court in any manner provided by the general rules and procedures.

Strike out petitions

They added that since the applications are of constitutional importance, they cannot be subject to formal strictures of procedure.

Among the petitions IEBC wanted struck out were from Wajir South, Mathioya, Kisii and Nairobi.

The ruling dealt a blow to the commission who had hoped that the striking out of the petitions would reduce the 125 petitions they are defending.

The judges also agreed to a proposal to have petitions in Nakuru heard in Nairobi, changing an earlier directive that they will conduct a hearing on June 6 at Nakuru County Hall. They also changed the hearing date in Mombasa from June 7 to June 8.

However, a proposal to have petitions relating to boundaries in North Eastern had in Nairobi was opposed by a section of lawyers who said their clients wanted to be heard in Garissa.

The hearings in Nairobi will be conducted for four consecutive days from June 4.