47.
I associate myself with the decision of the Court of Appeal (Kiage, JA) in Nicholas Kiptoo Arap Korir
Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR that:
“ I am not in the least persuaded that article 159 of the Constitution and the oxygen principles
which both command courts to seek to do substantial justice in an ecient, proportionate
and cost-eective manner and to eschew defeatist technicalities were ever meant to aid in
the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in
the administration of justice. This court, indeed all courts, must never provide succour and
cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines
serve to make the process of judicial adjudication and determination fair, just, certain and
even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of
goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who
strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate
application of rules that courts give assurance that there is clear method in the manner in
which things are done so that outcomes can be anticipated with a measure of condence,
certainty and clarity where issues of rules and their application are concerned.”
48.
In the case of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014]eKLR where
the Supreme Court of Kenya observed in dealing with the question of timelines dictated by the
Constitution and the Elections Act citing the Court of Appeal case, of Ferdinand Waititu v Independent
Electoral and Boundaries Commission, (IEBC) & 8 others, Civil Appeal No 137 of 2013 which
provided as follows:
“ These timelines set by the Constitution and the Elections Act are neither negotiable nor can
they be extended by any court for whatever reason. It is indeed the tyranny of time, if we
may call it so. That means a trial court must manage the allocated time very well so as to
complete a hearing and determine an election petition timeously.”
49.
The need to adhere to the constitutional timeframes was also emphasized in the cases of Martha
Wangari Karua v Independent Electoral and Boundaries Commission & 3 others [2019] eKLR and
Evans Odhiambo Kidero & 4 others v Ferdinard Ndungu Waititu & 4 others, SC Pet No 20 of 2014;
[2014] eKLR.
50.
Accordingly, it therefore follows that, as at the time of determination, January 6, 2022, the period
within which the respondent had to investigate and determine the complaint had already lapsed.
51.
I am in agree with applicants that pursuant to the provisions of section 56(5) of the Act the ODPC
had a time-bound jurisdiction to investigate and determine the complaint. When the 90 days’ period
ended, the respondent jurisdiction also came to an end by way euxion of time.
52.
Courts and tribunals cannot out the timelines expressly provided for in law.
53.
The moment the 90 days ended, the respondents jurisdiction also lapsed. The nding that was rendered
outside time was without jurisdiction and therefore a nullity, bereft of any force of law.
54.
Guided by the Supreme Court Judgment in the case SC Petitions 39 & 40 of 2019 Praxidis Namoni
Saisi & 7 Others V DPP & 2 Others unlike the traditional Kenyan dispute resolution mechanisms like
the court, the ODPC does not rely on the evidence produced by parties in making its decision. The
ODPC has investigatory powers call for or collect and use more evidence before arriving at a nding.
kenyalaw.org/caselaw/cases/view/258092/
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