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MagistratePartially AllowedPetition No. 147 of 2013 (as extracted; number not stated in the judgment text)· [2014] KEMC 2 (KLR)

Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission (IEBC) & 14 others [2014] KEMC 2 (KLR)

Chief Magistrate's Court (Election Petition)
5 June 2014
WJW. A. Juma
5,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court invalidated TNA's nominations to the Nyeri County Assembly, ruling that short deadlines never justify skipping legally required nomination procedures.

What this practically means

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Executive summary

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This was an election petition before the Chief Magistrate's Court concerning the nomination of TNA representatives to the Nyeri County Assembly. The petitioners, TNA members, had been gazetted as nominated members under Gazette Notice No. 9794 of 17/7/13, whose nominations were set aside by the Court of Appeal in Rose Wairimu Kamau v IEBC, Civil Appeal No. 169 of 2013, which directed TNA to compile a fresh list. TNA submitted a new list and IEBC amended the original gazette through a corrigendum, Gazette Notice No. 15096 of 29/11/13, replacing the petitioners with the 3rd – 6th respondents. The petitioners contended that TNA did not follow its nomination rules and that the corrigendum was an unlawful instrument. The respondents, including IEBC and TNA, maintained they complied with the Court of Appeal orders; some respondents also challenged the Court's jurisdiction. The Court found that TNA compiled its list without following procedure and without giving all interested persons an opportunity to compete, that time constraints did not excuse illegality, and that IEBC failed in its oversight by gazetting the list without ascertaining compliance and by using a corrigendum to make substantive nominations. The Court held the nominations invalid, declared Gazette Notice No. 15096 of no consequence, ordered fresh nominations by TNA and IEBC, and awarded costs against the 1st and 2nd respondents jointly and severally.

Key legal issues

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01

Validity of the TNA list of nominees compiled after the Court of Appeal decision

Holding

The list was compiled unlawfully because interested persons were not given an opportunity to compete and the party's nomination rules were not followed

Reasoning

TNA assembled party operatives and previously nominated members to choose among themselves who would regain seats, without applications, vetting or advertisement. The Court of Appeal had not authorised departure from the rules; time constraints did not excuse non-compliance. The method used was therefore not legal and the resulting nominations were invalid.

p. 8
02

Legality of Gazette Notice No. 15096 issued as a corrigendum

Holding

The corrigendum was an instrument of correction, not of making substantive nominations, and is of no consequence

Reasoning

A corrigendum, per the Blades Law Dictionary 8th edition, corrects errors in a printed work discovered after going to press. IEBC used it to delete names and insert others, effectively making substantive nominations, without identifying any typographical error. IEBC should have gazetted nominees afresh or revoked Gazette Notice 9794 to the extent it touched Nyeri County Assembly.

p. 9
03

IEBC's oversight role over the party list

Holding

IEBC failed in its duty by gazetting the list without oversight and without ascertaining compliance with the law, relying only on the party's certification

Reasoning

IEBC had a court order in hand and did not question how the list was produced. It also unjustifiably ignored TNA's list of those from the marginalized group, leaving the 7th, 8th, 9th and 14th respondents out of the amendment. IEBC was expected to gazette nominees in accordance with sections 34, 35 and 36 of the Elections Act.

p. 8
04

Jurisdiction of the Court raised by the 3rd – 15th respondents

Holding

The Court exercised jurisdiction, treating the matter as a nomination petition filed within the 28-day statutory period

Reasoning

The respondents argued the Court lacked jurisdiction, but the Court handled the matter as a petition by aggrieved persons after a nomination process seeking redress, filed well within the 28 days stipulated in the law, and proceeded to determine the reliefs on the evidence.

p. 9

Legal principles established

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  • A corrigendum is an instrument for correcting errors in a printed work and cannot be used to make or announce substantive nominations
  • Nominations are a competition and the prescribed procedures of application, vetting and verification must be followed; interested persons must be given an opportunity to compete
  • Time constraints, even those imposed by a court order, do not justify departure from the law and party nomination rules

Court orders

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  1. 1.A declaration that all those nominated were not validly nominated in accordance with the law and the nominations are set aside
  2. 2.A declaration that Gazette Notice No. 15096 of 29/11/13 is of no consequence as it was used in the wrong way
  3. 3.An order that TNA and IEBC comply with the law regarding nominations and proceed to conduct fresh nominations for members of the Nyeri County Assembly
  4. 4.Costs of the petition to be borne by the 1st and 2nd respondents jointly and severally
  5. 5.Right of appeal within 30 days

Authorities

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Legislation

  • The Constitution of KenyaArticles 90, 177
  • The Elections ActSections 34 – 37
  • The Elections (Parliamentary and County Elections) Petition Rulesnull
  • The TNA Nominations Rules and ConstitutionArticles 28, 29 (clauses 1, 2, 5, 6 and 7 referenced)
  • The Political Parties Actnull
  • Elections RegulationsSection 87 (referred to by counsel regarding corrigenda)

Cases cited (2)

  • Rose Wairimu Kamau & 3 others v IEBC
    Civil Appeal No. 169 of 2013
  • National Gender and Equality Commission v IEBC and others
    Petition No. 147 of 2013
Jurisdiction invoked
Articles 90 and 177 of the Constitution and the Elections Act 2011; election petition filed within 28 days as stipulated in the law

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, "Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission (IEBC) & 14 others [2014] KEMC 2 (KLR)", Case Analysis (2014). Petition No. 147 of 2013 (as extracted; number not stated in the judgment text). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/2/eng@2014-06-05

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