Ex-chief Peter Odoyo Ogada & 9 others v Others & 14 Others
The bottom line
#Kenya's Court of Appeal ruled that courts can review the IEBC's electoral boundary decisions for fairness but cannot replace them with their own choices.
What this practically means
#Executive summary
#Key legal issues
#Scope of the High Court's review power under Article 89(10)
The power of review is limited: the court may examine the IEBC's process for error, omission, default or consideration of extraneous matters, but may not substitute its own opinion for the Commission's decision. If a fault is found, the correct course is to direct the IEBC to redo the exercise.
The Court read Article 89(10) as imposing a supervisory, not substitutive, function. Delimitation requires consultation, resources, expertise and time, all of which lie within the constitutional mandate of the IEBC alone. The High Court cannot go out and consult residents or decide names and boundaries itself. Where no fault is demonstrated, the application must simply be dismissed.
Whether the IEBC's naming decision was lawful and rational
The IEBC's decision, arrived at through public hearings, memoranda, consideration and adoption by Parliament, and gazettement, was lawful and procedurally sound; the High Court found neither error nor illegality in it.
The IEBC had carried out consultative public meetings and received memoranda, including seventeen memoranda and census data on the Suba and Luo populations. Where a body like the IEBC applies its mind to constitutional and statutory requirements and reaches a rational conclusion, courts should not review the decision. The High Court itself made no finding of fault, so its substitution of names was without foundation.
Inappropriateness of judicial review remedies under Order 53 for Article 89(10) review
The respondents' recourse to certiorari and mandamus under Order 53 was misconceived; review of an IEBC decision under Article 89 should be by petition or application under Article 89(10), which permits declarations and directions not available in judicial review.
Mandamus requires demonstrating that the IEBC was bound to perform a statutory duty and failed to do so, yet the IEBC had completed the delimitation; the complaint was merely dissatisfaction with the outcome. Certiorari could only quash, not amend, the Legal Notice. The Court noted Order 53 might be expanded in scope, and that under Article 89(10) a party may pray for declarations or directions.
Separation of functions between the courts and the IEBC
Each organ of state should perform its mandate within the limits of the law; respect for each other's delimited areas of operation fosters public confidence and trust.
The Court invoked the principle of respect for constitutionally delimited mandates, citing the High Court's own admonition against usurping the functions of constitutional and statutory bodies. The insistence on rationality, not absence of discretion, is what limits arbitrariness; the courts' role is to ensure the fidelity of the Constitution while leaving the exercise within the IEBC's province.
Legal principles established
#- The High Court's power of review under Article 89(10) does not extend to substituting its own decision on delimitation of electoral boundaries for that of the IEBC; it may only find fault and direct the IEBC to undertake the exercise afresh.
- A constitutional review of an IEBC delimitation decision is concerned with legality, not with error; where the Commission has applied its mind and reached a rational conclusion, the courts should not review the decision.
- A person dissatisfied with an IEBC decision under Article 89 need not resort to judicial review under Order 53 of the Civil Procedure Rules; the proper route is a petition or application invoking Article 89(10).
- Courts must respect the delimited mandates of constitutional and statutory bodies and must not usurp their powers and functions.
Court orders
#- 1.The appeal is allowed
- 2.The decision of the High Court is set aside
- 3.The determination of the IEBC naming Suba North and Suba South Constituencies as published in Legal Notice No. 14 of 2012 on 6th March 2012 is upheld
- 4.Each party to bear its own costs
- On appeal from
- High Court of Kenya
- Kisii HCC Suit No. 13/12 (JR), consolidated in Nairobi JR No. 94 of 2012 and Nairobi Petition No. 91 of 2012
- Jurisdiction invoked
- Article 89(10) of the Constitution of Kenya 2010 (review of a decision of the IEBC made under Article 89); appeal to the Court of Appeal from the High Court decision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ex-chief Peter Odoyo Ogada & 9 others v Others & 14 Others", Case Analysis (2013). Court of Appeal Appeal arising from Nairobi JR No. 94 of 2012 (Kisii HCCC No. 13 of 2012 consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/356/eng@2013-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.