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Court of AppealPartially AllowedCivil Appeal No. 281 of 2012· [2013] KECA 496 (KLR)

Shaban Mohamud Hassan & 2 others v The Attorney General & 3 others

Court of Appeal
5 July 2013
5,806 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that courts can overturn IEBC boundary decisions but cannot redraw electoral boundaries themselves — that job belongs to the IEBC alone.

What this practically means

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Executive summary

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The Court of Appeal (Koome, Mwera, Musinga, Ouko and Mohammed JJ.A) allowed an appeal against a five-judge High Court decision of 9th July 2012 in consolidated judicial review applications concerning the IEBC's delimitation of Mandera East and Lafey Constituencies under Legal Notice No. 14 of 2012. The central question was the meaning of 'review' under Article 89(10) of the Constitution. The High Court had held that the review contemplated was a plenary review of both procedure and merits, entitling it to assume all powers necessary, and proceeded itself to move wards, create new county assembly wards and amend Legal Notice No. 14 of 2012 in order to protect the interests of the marginalised 'corner tribes', which it found the IEBC had disregarded contrary to Article 89(5). The Court of Appeal endorsed the High Court's finding that the IEBC failed to take the interests of the 'corner tribes', who had suffered historical discrimination, into account. However, it held that the High Court exceeded its jurisdiction: 'review' under Article 89(10) is ordinary judicial review under Articles 23(3)(f) and 47, confined to the decision-making process, and a court that quashes the IEBC's delimitation must direct the IEBC to undertake fresh delimitation rather than substitute its own. Applying Chief Constable of North Wales Police v Evans, the Court set aside the High Court's substantive orders (a) to (k), allowed the appeal with each party bearing its own costs, and directed that the next boundary review cycle take account of the 'corner tribes'.

Key legal issues

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01

Meaning of 'review' under Article 89(10) of the Constitution

Holding

The review contemplated is ordinary judicial review under Articles 23(3)(f) and 47, concerned with the decision-making process, not the merits of the delimitation

Reasoning

The Court held that the same word 'review' used of the IEBC's delimitation function must be distinguished from the 'review of a decision' by the High Court. Judicial review is a term of art describing certiorari, prohibition and mandamus to supervise public bodies. The applications were expressly brought under Order 53 and sought only those prerogative orders, binding the applicants to those strictures.

p. 10
02

Whether the High Court exceeded its jurisdiction by redrawing the boundaries

Holding

It did; delimitation is the exclusive province of the IEBC, and the court, lacking technical expertise, usurped the IEBC's mandate by creating wards and amending Legal Notice No. 14 of 2012

Reasoning

Although the High Court correctly found that the IEBC failed to consider the interests of the 'corner tribes' contrary to Article 89(5), its remedy was confined to quashing, prohibiting and directing fresh delimitation. By itself reconstituting and rearranging wards — some with no basis even in the applicants' proposals — the court entered a political thicket and mathematical quagmire contrary to its own holding that it could not substitute the IEBC's decision.

p. 9
03

Whether denial of an opportunity to highlight written submissions occasioned a miscarriage of justice

Holding

No; the High Court was bound to consider all written submissions whether highlighted or not

Reasoning

The Court accepted that the appellants' counsel was not allowed to highlight written arguments, but found that no prejudice resulted because the High Court was expected to consider all filed submissions. This ground therefore failed.

p. 10
04

Whether the Notice of Appeal was incompetent for not targeting the consolidated file

Holding

Although the appeal ought to have been brought against H.C. Misc. Appl. No. 94 of 2012, that alone was not a basis to reject the appeal

Reasoning

The respondent's counsel objected that the Notice of Appeal referenced only one of the two consolidated applications. The Court accepted that the appeal should have been filed against the consolidated file but held that the defect was not fatal, particularly as the missing application was included in a supplementary record filed after an adjournment.

p. 11

Legal principles established

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  • The 'review' in Article 89(10) of the Constitution is ordinary judicial review, confined to the decision-making process; the High Court may not substitute the IEBC's delimitation with its own
  • Once a party elects judicial review rather than a constitutional petition, it is bound by judicial review strictures; the High Court's power upon finding a violation is limited to quashing, prohibiting and directing fresh delimitation by the IEBC
  • The High Court, while exercising review under Article 89, has no jurisdiction to substitute the decision of the IEBC with its own; each organ must perform its mandate within the limits of the law

Court orders

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  1. 1.The High Court's orders (a) to (k) made in its judgment of 9th July 2012, by which it moved wards between constituencies, created new county assembly wards and amended Legal Notice No. 14 of 2012, are set aside
  2. 2.The appeal is allowed
  3. 3.Each party to bear its own costs
  4. 4.A declaration that the next cycle of boundaries review shall, all things being equal, take into account the interests of the 'corner tribes'
On appeal from
High Court of Kenya at Nairobi
High Court Judicial Review No. 94 of 2012 (comprising JR Misc. Application Nos. 114 and 116 of 2012)
Jurisdiction invoked
Appeal to the Court of Appeal against the High Court's decision on review of the IEBC's boundary delimitation under Article 89 of the Constitution; heard as of right from a five-judge bench decision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shaban Mohamud Hassan & 2 others v The Attorney General & 3 others", Case Analysis (2013). Civil Appeal No. 281 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/496/eng@2013-07-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.