Mwau v Independent Electoral and Boundaries Commission & another (Civil Appeal 112 of 2014) [2019] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the education requirements for election candidates, the rules for independent candidates, and the legality of political party coalitions.
What this practically means
#Executive summary
#Key legal issues
#Pleading with particularity in constitutional petitions
The appellant's generalised allegations of constitutional violation, without pleading the specific injury and the respondents' responsibility, cannot sustain declaratory relief
The Court endorsed the trial Judge's finding that the 37 prayers lacked anchorage in the petition. Relying on Raila Odinga v IEBC and S v Zuma, it held that a party alleging violation must demonstrate the impairment, and the State then bears the burden of justifying any limitation. General allegations, speculation and pleading against parties not responsible for the impugned legislation (Parliament was not joined) cannot found relief.
Constitutionality of post-secondary educational qualifications for elective office
The post-secondary education requirement under Sections 22 and 24 of the Elections Act, enacted pursuant to Article 99(1)(b) and 193 of the Constitution, is attainable, sufficient and constitutional and not discriminatory
The Court agreed with the trial Judge that educational standards apply equally across all candidates and those who do not qualify may first attain the qualifications. The people, through Article 99(2)(b), envisaged Parliament prescribing the threshold; declaring Section 24 unconstitutional would amount to declaring Article 99 itself unconstitutional. The requirement does not reflect discrimination against holders of alternative qualifications.
Nomination requirements for independent candidates versus party-sponsored candidates
Regulations 16, 17 and 18 impose the same supporter-signature requirements on both party and independent presidential candidates, so there is no discrimination
The Court scrutinised Regulations 16, 17 and 18 and found that both party-nominated and independent candidates must deliver applications supported by registered voters. An independent candidate must in any event comply with Article 85 of the Constitution. The differential framing of the applications does not amount to unequal or discriminatory treatment.
Constitutionality of political party mergers and coalitions under the Political Parties Act
Sections 10 and 11 of the Political Parties Act, providing for coalitions, are a legitimate exercise of Parliament's mandate under Article 92 and are not unconstitutional
Although the Constitution does not expressly provide for mergers or coalitions, Article 92 mandates Parliament to legislate on the regulation of political parties. Barring coalitions could itself impede freedom of choice. The presumption of constitutionality applies, and the appellant failed to demonstrate that the provisions are unfair, irrational or contrary to the values and spirit of the Constitution.
Legal principles established
#- A party alleging violation of a constitutional right must demonstrate the right has been impaired, infringed or limited; orders are never issued on assumption or speculation
- There is a presumption that every statute enacted by Parliament is constitutional, and the challenger bears the burden of demonstrating unconstitutionality
- A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the conclusions of the trial judge stand
- Memoranda of appeal must set out grounds concisely and under distinct heads without argument or narrative
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs
- On appeal from
- High Court of Kenya
- not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 86(1) of the Court of Appeal Rules (statutory first-appeal jurisdiction); not a Supreme Court Article 163(4) appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwau v Independent Electoral and Boundaries Commission & another (Civil Appeal 112 of 2014) [2019] KECA 86 (KLR)", Case Analysis (2019). Civil Appeal No 112 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/86/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.