Feisal Shaib Khan & another v Independent Electoral And Boundaries Commission (Iebc) & 5 others [2018] KECA 195 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Which court has jurisdiction over disputes as to the validity of nomination of members of a County Assembly
The Magistrate's Court designated by the Chief Justice, moved by way of an election petition, not the High Court.
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.
Whether the trial court erred in striking out the constitutional petition upon the preliminary objections
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs
- 2.The ruling of the High Court upholding the preliminary objection and striking out the constitutional petition is affirmed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.