Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission (IEBC) & 14 others [2014] KEMC 1 (KLR)

Subordinate Court (Magistrates' Court), Nyeri

5 June 2014

WJW.A. JUMA

1,988 words in judgment

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The bottom line

A Nyeri court allowed an election petition over TNA's 2013 county assembly nominations to proceed, dismissing all attempts to strike it out.

What this practically means

Executive summary

This is a ruling on preliminary objections raised by the 3rd to 15th Respondents in an election petition concerning TNA's contested party nomination list for the Nyeri County Assembly, arising from nominations redone after the Court of Appeal decision in Rose Wairimu Kamau & Others v IEBC (Civil Appeal No. 169 of 2013). The 7th–9th Respondents argued the petition was statute barred, having been filed outside 28 days of Gazette Notice No. 9794 of 17th July 2013, and that the Court lacked jurisdiction to grant declarations that would second-guess the Court of Appeal. The 3rd–6th and 10th–15th Respondents argued the issues concerned implementation of the Court of Appeal decision, offended stare decisis, were res judicata, and were an abuse of process. The Petitioners countered that these were matters of evidence, that Section 75 of the Elections Act vests jurisdiction over County Representative disputes in subordinate courts, and that they were never parties to the earlier litigation. The Court agreed jurisdiction had to be determined first but held that limitation runs from the gazettement of 29/11/13, when the cause of action arose, not from 17/7/13. It held the petition concerned a fresh cause of action from the redone nominations; it was not interpreting or implementing the Court of Appeal decision, and stare decisis did not oust jurisdiction. The matters were not res judicata as the Petitioners were not enjoined in the earlier case. All preliminary objections were overruled and dismissed with costs to the Petitioners, with the Court to proceed to prepare judgment in the main petition.

Key legal issues

Limitation - when the 28-day period under Section 75 of the Elections Act begins to run

Holding

The ground of limitation fails; time runs from the gazettement of 29/11/13, when the cause of action arose

Reasoning

The petition arose out of nominations conducted in November 2013. The Court held the 28-day period could only run from the gazettement of 29/11/13, the date the cause of action accrued, and not from the Gazette Notice of 17/7/13, when no cause of action existed. The limitation ground therefore failed.

p. 4

Stare decisis and jurisdiction relative to the Court of Appeal decision in Rose Wairimu Kamau

Holding

The doctrine does not oust jurisdiction; the petition concerns a fresh cause of action arising from the redone nominations, not interpretation or implementation of the Court of Appeal order

Reasoning

The Court held it was not mandated by the Court of Appeal to execute its judgment; implementation was for TNA and IEBC. The dispute arose from a fresh situation - the redone nomination process - and whether that process was proper is a question of evidence triable at hearing, not disposable by preliminary objection.

p. 4

Res judicata

Holding

The matters are not res judicata; the Petitioners were not parties to the Court of Appeal case and plead a different complaint

Reasoning

The Court found the matter before the Court of Appeal was very different from the present petition. The Petitioners were merely notified to attend and make representations but were not enjoined by pleadings, and their petition contains a different complaint from what was before the Court of Appeal.

p. 5

Legal principles established

In an election petition, limitation under Section 75 runs from the date of gazettement of the nominees when the cause of action arose, not from an earlier gazette notice
A preliminary objection can only succeed on pure points of law, not on matters requiring evidence
A subordinate court hearing a fresh nomination dispute arising after a Court of Appeal decision is not bound by stare decisis to decline jurisdiction, as it does not interpret or implement that decision

Court orders

1.Preliminary objections of the 3rd to 15th Respondents overruled
2.Declaration that this Court has jurisdiction to hear the petition
3.The Court to proceed to prepare judgment in the main petition
4.P.O.s dismissed with costs to the petitioners

Authorities

Legislation

Elections Act, 2012Section 75(1)(a)
Elections Act, 2012Section 74
Constitution of Kenya, 2010Article 10
Constitution of Kenya, 2010Article 88(4)

Cases cited (1)

ROSE WAIRIMU KAMAU & OTHERS V THE IEBC
Civil Appeal No. 169 of 2013

Jurisdiction invoked: Section 75 of the Elections Act, 2012 (disputes relating to County Representatives triable by subordinate Courts)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission (IEBC) & 14 others [2014] KEMC 1 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/1/eng@2014-06-05

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