National Vision Party& another v Independent Electoral and Boundaries Commission & another [2013] KEMC 18 (KLR)
The bottom line
#Kenya's High Court ruled the IEBC must fill gender top-up seats from the original party list it received, so Sarah Mohamed Ali, not Nestehe Bare Elmi, was duly nominated.
What this practically means
#Executive summary
#Key legal issues
#Whether NVP submitted lists of nominees in compliance with the Elections Act
Yes - a membership list and party list were submitted prior to the elections, but neither contained the 2nd respondent's name
Section 28 of the Elections Act mandates submission of a membership list at least three months before nomination, and section 35(1) requires the party list 45 days before elections. The documents produced showed the 2nd petitioner's name on the lists submitted on 18/01/13, but the 2nd respondent's name appeared only in a letter of 29/04/13, outside the statutory timelines. Neither respondent challenged the documents.
Whether the IEBC could call for or admit a new nominee outside the original party list
No - the IEBC was required to draw the gender top-up candidate from the original list and could only use a re-submitted list to fill gaps
Reading sections 28, 34 and 36(7) of the Elections Act together, the commission's power was to direct the party to name a candidate from the existing list if the gender top-up category was omitted. The 1st respondent failed to demonstrate any authority to admit an extra list where the original list was not exhausted. Admitting the 2nd respondent, whose name did not feature in the original list, was therefore irregular.
Whether the 2nd respondent was eligible for nomination under the party rules and the law
She did not meet the education threshold in the NVP nomination rules, though the statutory education requirement was exempted for the first elections
The NVP nomination rules required a post-secondary qualification, and the 2nd respondent admitted attending only up to class four of primary school. Section 2A of the Elections (Amendment)(No.3) Act exempted education requirements for the first elections, but the court held that some basic education was intended, which she lacked. The IEBC, as the body supervising elections under Article 90(2), should have verified her qualifications and rejected the nomination under Regulation 54(5).
Legal principles established
#- The IEBC is bound to select gender top-up candidates from the original party list submitted to it and may only resort to a re-submitted list to address inadequacies or gaps in the original list
- The IEBC has a duty to confirm that persons listed in nomination lists are duly qualified for election, and may reject a nominee who is not qualified
Court orders
#- 1.Declaration that the 1st respondent exceeded its powers by failing to have due regard to the 1st petitioner's original list as submitted on 24th January 2013 and again on 12th March 2013 and consequently irregularly and illegally omitting the 2nd petitioner's name
- 2.Declaration that the 2nd petitioner's right to legitimate expectation was violated by the 1st respondent when it illegally and irregularly omitted her name contained in the original list
- 3.Declaration that the original list submitted on 24th January 2013 and re-submitted on 12th March 2013 was the only list the 1st respondent ought to have used when allocating the Mandera County Assembly special seats
- 4.Declaration that the 1st respondent ought to have used the original lists and resorted to the re-submitted list only for addressing inadequacies or gaps, namely if there was no female nominee in the list
- 5.Declaration that the 2nd respondent was illegally and irregularly nominated as the 1st petitioner's representative for the Mandera County Assembly special seat
- 6.Declaration that the 2nd petitioner is the duly nominated representative of NVP for the Mandera County Assembly special seat
- 7.Costs of the petition borne by the 1st respondent, capped at Kshs 100,000
- Jurisdiction invoked
- Original jurisdiction over election petitions concerning nomination of County Assembly special seat representatives under the Constitution and the Elections Act (Article 90(2) referred to)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Vision Party& another v Independent Electoral and Boundaries Commission & another [2013] KEMC 18 (KLR)", Case Analysis (2013). Election Petition (Mandera). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/18/eng@2013-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.