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MagistrateDismissedNot stated in the judgment· [2013] KEMC 66 (KLR)

Justus Nyaribo v Clerk to Nyamira County Assembly [2013] KEMC 66 (KLR)

Resident Magistrate's Court at Nyamira
13 August 2013
1,554 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a petition against Nyamira's Speaker election, confirming speaker candidates only need to be registered voters anywhere, not in the county.

What this practically means

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Executive summary

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The respondent raised a preliminary objection to a petition challenging the procedure used to clear and elect the Speaker of Nyamira County Assembly. The petitioner argued, inter alia, that one candidate, Duke Omwenga, was unlawfully cleared because he was not a registered voter in a ward within the county, contending that Article 193 qualifications for election as a member of county assembly apply to speaker candidates since the speaker is an ex-officio member under Article 177(1)(d). The respondent contended that no law requires a speaker candidate to be a registered voter within the county, that the court lacks power over a speaker once elected, and that the petition was overtaken by events since the election had been held on 22/03/2013. The court framed three issues. First, it agreed with the petitioner that Article 193 qualifications apply to speaker candidates, as reinforced by section 21(1) of the Elections Act, but found that Article 193(1)(a) requires only registration as a voter generally, not within a ward of the county. Second, it held that the court has jurisdiction to nullify a speaker's election where the law is breached, alongside the county assembly removal process in section 11(1) of the County Governments Act. Third, it found the petition overtaken by events: Peter Kingoina had been elected speaker and the targeted candidate was not elected, making injunctive relief unenforceable. The petition was dismissed with costs to the respondent.

Key legal issues

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01

Whether a speaker candidate must be a registered voter in a ward within the county

Holding

No. Article 193(1)(a) requires only registration as a voter, without any ward or county restriction, and those qualifications apply to speaker candidates.

Reasoning

The court held that Article 193 qualifications for election as a member of county assembly apply to speaker candidates because the speakership is an elective position, and the speaker becomes an ex-officio member under Article 177(1)(d) only after election under Article 178(1). Section 21(1) of the Elections Act confirms speakers are chosen from persons qualified to be elected as members. Article 193(1)(a) requires only that a person be registered as a voter, not a voter within a particular ward or county.

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02

Whether the court has jurisdiction to nullify the election of a county assembly speaker

Holding

Yes. Besides the county assembly removal process under section 11 of the County Governments Act, courts may nullify a speaker's election where there is a breach of the law.

Reasoning

The court rejected the respondent's argument that removal of a speaker is exclusively a county assembly matter under section 11(1) of the County Governments Act. It held that courts, as custodians of the law, may nullify a speaker's election where the person elected does not meet Article 193 requirements or is disqualified under Article 193(2).

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03

Whether the petition was overtaken by events

Holding

Yes. The election sought to be enjoined had already been held, and the candidate targeted by the petition was not elected, so hearing the petition would be futile.

Reasoning

Although the petition was not moot when filed on 22/03/2013, the speaker's election had since taken place with Peter Kingoina elected, not Duke Omwenga, the target of the injunctive relief. The injunction sought could no longer be enforced, and the court cannot issue orders in vain. The petition was accordingly dismissed with costs to the respondent.

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Legal principles established

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  • Candidates for the office of county assembly speaker must satisfy the qualifications for election as members of county assembly under Article 193, including registration as a voter generally, not as a voter in a ward within the county
  • A county assembly speaker may be removed either by the county assembly process or through the judicial process
  • A court will not issue orders in vain where a petition has been overtaken by events

Court orders

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  1. 1.The Petition is hereby dismissed
  2. 2.The petitioner to pay costs of the petition to the Respondent
Jurisdiction invoked
Article 178, 193 of the Constitution of Kenya, 2010; Elections Act No. 24 of 2011

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, "Justus Nyaribo v Clerk to Nyamira County Assembly [2013] KEMC 66 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/66/eng@2013-08-13

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