Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission & another [2014] KECA 791 (KLR)
The bottom line
#The Court of Appeal dismissed a challenge to a URP county assembly party-list nomination, confirming that Section 13 of the Elections Act does not restrict substitutions on party lists.
What this practically means
#Executive summary
#Key legal issues
#Scope of Section 13 of the Elections Act
Section 13 governs candidates contesting elective posts, not persons on party lists for nominated (non-elective) seats; party-list substitutions are therefore outside the section.
The court read Section 13 with Section 2 of the Elections Act, which defines a 'Candidate' as a person contesting for an elective post. Since Section 13 refers to 'Candidates' and to the presentation of nomination papers, it makes no reference to party lists and cannot restrict substitution of persons proposed for nomination to non-elective posts. Counsel for the 1st respondent's contrary argument was a misunderstanding of the law.
Jurisdiction over party-list nomination complaints after gazettement
A complaint lodged with the IEBC or another tribunal before gazettement may afterwards proceed to the High Court; the matter in such circumstances is properly before the court notwithstanding gazettement.
Following its own decision in Civil Appeal No. 169 of 2013 (Maraga, Mwera & J. Mohammed, JJ.A), the court held that where the complaint was lodged before gazettement, the courts retain jurisdiction. Here the complaint was lodged with the IEBC long before gazettement, and the High Court petition was determined on 12 July 2013 before the gazettement on 17 July 2013, so the appeal was properly before the Court.
Validity of the nomination of Rose Githenji Kisama and the appellant's entitlement
No evidence showed the nomination was improper; Kisama was female and indicated as representing the Maasai, both marginalised categories in Uasin Gishu, and was confirmed a URP member. Even if she were removed, the appellant on the marginalised list could not claim the gender top-up vacancy.
The IEBC Tribunal heard witnesses, including a URP representative, who confirmed Kisama's URP membership, and TNA denied her membership. The High Court concurred in those findings of fact, and the Court saw no sufficient reason to depart from the concurrent findings. The ethnicity question was never raised below. Further, counsel for the appellant conceded before the Court that the appellant was not next in order of priority and could not have been nominated even if Kisama were removed.
Legal principles established
#- Section 13 of the Elections Act applies only to candidates nominated to contest elective posts and not to persons proposed for nomination to non-elective posts through party lists
- Where a complaint arising from party-list nominations was lodged with the IEBC or another tribunal before gazettement of the names, the High Court has jurisdiction to determine the matter even after gazettement
- A complainant on a marginalised list has no entitlement to a place on the gender top-up list if a nominated person is removed; the vacancy goes to the next person on the top-up list
Court orders
#- 1.Appeal dismissed
- 2.Costs awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Petition No. 149 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over a petition decided by the High Court under the electoral dispute-resolution framework of the Constitution of Kenya 2010, the Elections Act and the Political Parties Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission & another [2014] KECA 791 (KLR)", Case Analysis (2014). Civil Appeal No. 178 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/791/eng@2014-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.