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Case Brief · caselaw.co.ke
MagistratePartially AllowedElection Petition dated 22nd March 2013 (filed 23rd March 2013)

Terer v Langat & 3 others (Election Petition 1 of 2013) [2013] KEMC 47 (KLR)

High Court of Kenya (Election Court) - Resident Magistrate sitting as Election Court
5 July 2013
7,197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Kenya's High Court nullified the Bomet County Assembly Speaker's election because he was a public officer who failed to resign six months before the election.

What this practically means

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Executive summary

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This was an election petition challenging the election of the 1st Respondent as Speaker of the Bomet County Assembly on 22nd March 2013. The Petitioner alleged that the 1st Respondent was still a public officer at the time of his election, having not resigned as required, and that his nomination and election breached Article 193(2) of the Constitution and Sections 21, 25 and 43(5) of the Elections Act. The court identified six contested issues, including eligibility, responsibility for the election irregularities, the Petitioner's locus standi and competence of the petition against the 3rd and 4th Respondents. Applying the literal rule of statutory interpretation, the court held that the election of a county assembly speaker is an 'election under this Act', so Section 43(5) required a public officer to resign at least six months before the election. The 1st Respondent's resignation letter dated 19th March 2013 was never received by the Public Service Commission or the Permanent Secretary, and in any event fell only two days before the election. He was therefore ineligible. The 2nd Respondent, who presided, accepted a disqualified candidate's nomination despite notice from the 3rd Respondent (IEBC), and was to blame; the 4th Respondent was equally liable under its transition mandate, while the 3rd Respondent bore no responsibility. Any voter had locus standi, and the petition against the 3rd and 4th Respondents was competent. The court declared the election null and void, ordered fresh elections rather than declaring the runners-up (who was not a party), and awarded costs to the Petitioner and the 3rd Respondent against the 1st, 2nd and 4th Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st Respondent was eligible to vie as the speaker of Bomet County Assembly
  2. 2.Who was responsible for the conduct of the elections of the speaker of the Bomet County Assembly
  3. 3.If the 1st Respondent was ineligible, who was responsible
  4. 4.Did the Petitioner have locus standi to file the Petition
  5. 5.Is the Petition against the 3rd and 4th Respondents competent
  6. 6.What orders, consequential reliefs and declarations should the court make

Key legal issues

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01

Whether Section 43(5) of the Elections Act applies to the election of a county assembly speaker

Holding

Yes; the speaker's election is an election under the Elections Act, so a public officer candidate had to resign at least six months before the election

Reasoning

Applying the literal rule from Orengo v Moi, Opoya v Uganda and Makwere v Mabera, the court read the words 'an election under this Act' in Section 43(5) in their plain and natural meaning. Since Section 21 of the Elections Act provides for the speaker's election within the part headed 'County Assembly Elections', it is an election under the Act. The County Government Act only addresses removal of the speaker, not election. Exemptions are confined to Section 43(6).

p. 10
02

Whether the 1st Respondent had resigned from the public service before election

Holding

No; there was no evidence of effective resignation from the Public Service Commission, and in any event the purported resignation was two days before the election, far short of six months

Reasoning

As Clerk of the County Council of Kipsigis, the 1st Respondent was an employee of the Public Service Commission under Section 109 of the repealed Local Government Act. His resignation letter dated 19th March 2013 was only received at the Council's offices and there was no evidence it reached the Permanent Secretary or the Commission. Even if received, only two days elapsed before the 22nd March 2013 election, falling short of the statutory six months.

p. 11
03

Who was responsible for the irregularities in the speaker's election

Holding

The 2nd Respondent, who presided and accepted the nomination papers of a disqualified public officer, and the 4th Respondent equally to blame under its transition mandate; the 3rd Respondent was not liable

Reasoning

The clerk of the assembly was mandated to preside under Section 3 of the First Schedule to the Elections Act. At the first sitting there was no County Assembly Service Board, so the 4th Respondent's argument that the presiding officer was its employee failed. The election of speakers was part of the 4th Respondent's mandate to ensure successful transition to devolution, creating an obligation to ensure a credible election. The 3rd Respondent had timely revoked the clearance and bore no responsibility.

p. 13
04

Whether the election should be nullified notwithstanding Section 83 of the Elections Act

Holding

Yes; the election was not conducted in accordance with the Elections Act or Article 81(e) of the Constitution, and Section 83 could not save a defect in qualification

Reasoning

Following Joho v Nyange and Ali v Gethinji, qualification is a condition precedent, so non-compliance was not a minor breach curable by Section 83. The presiding officer was biased in allowing the 1st Respondent to vie after the 3rd Respondent had informed him more than two days before the election that the candidate did not meet mandatory nomination requirements, breaching Article 81(e).

Legal principles established

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  • The election of a county assembly speaker is an election under the Elections Act, so a public officer must resign at least six months before the election under Section 43(5)
  • Qualification for nomination is a condition precedent for election and Section 83 of the Elections Act cannot cure a disqualification defect
  • Election petitions are not ordinary suits; any voter has locus standi to petition

Court orders

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  1. 1.Declaration that the election of the 1st Respondent as Speaker of the Bomet County Assembly held on 22nd March 2013 is null and void
  2. 2.Declaration that the 1st Respondent was not validly elected as Speaker of the Bomet County Assembly
  3. 3.A certificate to that effect to issue forthwith and be served upon the Independent Electoral and Boundaries Commission pursuant to Section 86 of the Elections Act
  4. 4.Fresh elections for the speaker of Bomet County Assembly to be held
  5. 5.Costs of the Petition awarded to the Petitioner and 3rd Respondent against the 1st, 2nd and 4th Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Election of a county assembly speaker as an election under the Elections Act No. 24 of 2011, heard as an election petition under the Elections (Parliamentary and County Elections) Petition Rules, 2013

Relief refused

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Declaration of Mr. Joel Kipkurui Koskei, the runners-up, as the duly elected speaker under Section 75(3) of the Elections Act and Rule 10(4) of the Petition Rules

The runners-up was not a party to the petition and the office of speaker requires broad support among members of the County Assembly

p. 16

Costs

The costs of the Petition are awarded to the Petitioner and 3rd Respondent against the 1st, 2nd and 4th Respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I declare the election of the 1st Respondent null and void. I further declare that he was not validly elected as the Speaker of the Bomet County Assembly and a certificate to that efiect will issue forthwith and be served upon the Independent Electoral and Boundaries Commission pursuant to Section 86 of the Elections Act No. 24 of 2011.
p. 16Nullification of the speaker's election and issuance of certificate
I therefore order that fresh elections for the speaker of Bomet county assembly be held where all interested candidates will have a chance to try their luck.
p. 16Fresh election ordered instead of declaring the runners-up
I decline the request to declare Mr. Joel Kipkurui Koskei, the runners-up to the election held on the 22nd day of March 2013, as the duly elected speaker, for two (2) reasons:
p. 16Refusal to invoke Section 75(3) in favour of the runners-up
The costs of the Petition are awarded to the Petitioner and 3rd Respondent against the 1st, 2nd and 4th Respondents.
p. 16Costs order
The 1st Respondent having been a Public oficer prior to the elections held on the 22nd day of March 2013 was bound by section 43(5) of the elections Act and ought to have resigned at least 6 months to the election. It matters not that the election date was only known a few days to the election.
p. 11Section 43(5) resignation requirement applies to speaker's election
Guided by the above statement by the court of Appeal whose decisions are binding on this court, I find the Petitioner, just like any other voter in Bomet county, had a valid interest in the election of the speaker and therefore had the locus standi to file the Petition.
p. 14Locus standi of any voter in an election petition

Issues in the judgment

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minor

Paragraph numbering in the judgment is irregular - two consecutive paragraphs are both numbered 16

minor

Recurrent OCR-style corruption of the word 'office' as 'ofice'/'ofience' throughout the text

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, "Terer v Langat & 3 others (Election Petition 1 of 2013) [2013] KEMC 47 (KLR)", Case Analysis (2013). Election Petition dated 22nd March 2013 (filed 23rd March 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/47/eng@2013-07-05

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