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Court of AppealDismissedCivil Appeal No. 26 of 2018· [2018] KECA 195 (KLR)

Feisal Shaib Khan & another v Independent Electoral And Boundaries Commission (Iebc) & 5 others [2018] KECA 195 (KLR)

Court of Appeal
8 November 2018
3,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that once the IEBC gazettes nominations, disputes about party lists can only be challenged through an election petition, not constitutional petitions.

What this practically means

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Executive summary

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This appeal concerned the nomination of party candidates to the Lamu County Assembly. The appellants were named in KANU's Party List submitted to the IEBC, but the IEBC gazetted the 3rd and 4th respondents instead. Following a consent order before the Political Parties Dispute Tribunal directing KANU to include the appellants, the IEBC nonetheless published a Gazette Notice omitting Lamu County. The appellants then filed a constitutional petition at the High Court at Garsen seeking declarations, de-gazettement of the 3rd and 4th respondents, and their own gazettement. The High Court (Ongeri, J.) upheld preliminary objections and struck out the petition, holding it lacked jurisdiction in light of the Supreme Court's decision in Moses Mwicigi. The Court of Appeal affirmed. Framing the fundamental question as whether a constitutional petition or judicial review can initiate an election-related or party nomination dispute after gazettement, the Court held it cannot: party nomination disputes after gazettement can only be pursued by way of an election petition, and for County Assembly membership, that jurisdiction lies with the Magistrate's Court designated by the Chief Justice, not the High Court. Guided and bound by Moses Mwicigi and the line of authority from Thande vs. Montgomery through Kennedy Moki, the Court found the appeal had no merit and dismissed it with costs, leaving the striking out of the petition undisturbed.

Key legal issues

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01

Whether a constitutional petition or judicial review proceedings can be invoked to initiate an election-related or party nomination dispute after gazettement of nominated candidates

Holding

No. The publication of the Gazette Notice ends the IEBC's mandate and shifts any consequential dispute to the Election Courts; a constitutional petition or judicial review cannot constitute a parallel electoral dispute-resolution regime.

Reasoning

The Court relied on the Supreme Court's decision in Moses Mwicigi, which held that nomination through the party list is an integral part of the election process, completed by gazettement. Allowing such disputes to be transmuted into rights petitions or judicial review would open a parallel electoral dispute-resolution regime and defeat the sui generis character of electoral dispute resolution. The proper forum is the election court.

p. 3
02

Which court has jurisdiction over disputes as to the validity of nomination of members of a County Assembly

Holding

The Magistrate's Court designated by the Chief Justice, moved by way of an election petition, not the High Court.

Reasoning

Section 75(1A) of the Elections Act confers jurisdiction on Magistrates' Courts to determine questions of validity of election of a member of a County Assembly. Nominations are part of the election process, and any contest to an election, whatever its manifestation, must be by way of election petition. The appellants' petition in the High Court was therefore not before a court of competent jurisdiction.

p. 3
03

Whether the trial court erred in striking out the constitutional petition upon the preliminary objections

Holding

No. The trial court correctly upheld the preliminary objection and struck out the petition, and the numerous grounds of appeal collapsed with the jurisdictional finding.

Reasoning

Since the High Court lacked jurisdiction over a post-gazettement nomination dispute, the striking out of the petition was proper. The Court adopted the Owners of the Motor Vessel 'Lilian S' principle that a court downs its tools the moment it holds it is without jurisdiction. All other grounds of appeal, being dependent on jurisdiction, collapsed ipso facto.

p. 4

Legal principles established

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  • Party nomination disputes after gazettement by the IEBC can only be heard and determined by way of an election petition; neither judicial review nor a constitutional petition may be used to initiate electoral dispute resolution after gazettement of nomination or election results
  • Jurisdiction to hear an election petition concerning membership of a County Assembly is vested in the Magistrate's Court, not the High Court

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The ruling of the High Court upholding the preliminary objection and striking out the constitutional petition is affirmed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 87
  • Constitution of Kenya, 2010Article 105(1)(b)
  • Constitution of Kenya, 2010Article 88(4)(e)
  • Constitution of Kenya, 2010Article 97(1)(a) and (b)
  • Constitution of Kenya, 2010Article 98(1)(a)
  • Constitution of Kenya, 2010Article 177(1)(a) and (b)
  • Constitution of Kenya, 2010Article 165(3)
  • Constitution of Kenya, 2010Article 163
  • Constitution of Kenya, 2010Articles 10, 22 and 23
  • Elections ActSection 35
  • Elections ActSection 36(1)
  • Elections ActSection 75 and Section 75(1A)
  • Elections ActSection 76
  • Elections ActSection 74(11)
  • IEBC ActSection 4

Cases cited (9)

  • Moses Mwicigi & 14 others vs. Independent Electoral and Boundaries Commission & 5 others
    [2016] eKLR
  • Owners of the Motor Vessel "Lilian S" vs. Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Aden Noor Ali vs. Independent Electoral and Boundaries Commission & Others
    (2017) eKLR
  • Thande vs. Montgomery
    (1970) EA 341
  • Mwihia & another vs. Ayah & Another
    [2008] 1 KLR (EP) 450
  • Kipkalya Kiprono Kones vs. The Republic & Another Ex-parte Kimani Wanyoike & 4 Others
    [2006] eKLR
  • Kennedy Moki vs. Rachel Kaki Nyamai & 2 others
    [2018] eKLR
  • Wamboko vs. Kibunguchi & another
    (2008) 2 KLR 477
  • Hamdia Taroi Sheikh Nuri vs. Faith Tumaini Kombe & 2 Others
    Election Petition Appeal No. 27 of 2018
On appeal from
High Court at Garsen
Constitutional Petition No. 2 of 2017
Jurisdiction invoked
Article 164 of the Constitution (appellate jurisdiction of the Court of Appeal over the High Court); dispute arising under Articles 87, 88(4)(e), 97, 98, 105(1)(b) and 177 of the Constitution, the Elections Act (Sections 35, 36, 74(11), 75, 76) and the IEBC Act (Section 4)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Feisal Shaib Khan & another v Independent Electoral And Boundaries Commission (Iebc) & 5 others [2018] KECA 195 (KLR)", Case Analysis (2018). Civil Appeal No. 26 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/195/eng@2018-11-08

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