Kenya: Former MP Loses Appeal Against IEBC Ruling on 2017 Poll Petition

16 September 2020

The High Court has upheld the decision of the electoral commission to fine former Kibwezi East MP Philip Kaloki Sh500,000 for instigating violence during the 2017 General Election against his rival, Ms Jessica Mbalu.

Justice Pauline Nyamweya found the Electoral Code of Conduct Committee of the Independent Electoral and Boundaries Commission (IEBC) acted legally, fairly and that its decision was rational.

She said that if Prof Kaloki was of the view that findings of the committee were wrong or erroneous, the court was not the appropriate forum to decide the matter. He should have proceeded by way of appeal, said Justice Nyamweya.

She dismissed contention by Prof Kaloki that the committee's ruling on June 23, 2017 failed to take into account the evidence and materials placed before it and that it was biased.

Fair hearing

Prof Kaloki had also argued that he was never afforded a fair hearing as a result of the failure to give him adequate time to prepare for his defence. He contended that his right to fair administrative action was violated.

He told the court that pursuant to section 20 of the Elections Offences Act, the breach of the Electoral Code of Conduct is an offence, and the Director of Public Prosecutions have exclusive power to order investigations and to prosecute offences.

Therefore, the IEBC's Committee lacked jurisdiction to hear the matter and its decision should be quashed and he should be refunded the money he was fined.

Committee's powers

But the court found that the committee's powers are provided for in the Second Schedule of the Elections Act which give it jurisdiction to punish any person found to have infringed on the Electoral Code of Conduct and the sanctions include imposition of a fine.

In addition, the judge said the committee is specifically exempted from the requirements of the Criminal Procedure Code, which are the ones which would apply to the prosecution of criminal offences including offences under the Elections Act.

The court also dismissed Prof Kaloki's argument that the complaint against by Ms Mbalu was rushed as it was never placed before the peace committee in the constituency for investigations.

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