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MagistrateDismissedElection Petition No. 12 of 2013· [2014] KEMC 4 (KLR)

Narc Kenya & another v Independent Electoral and Boundaries Comission another [2014] KEMC 4 (KLR)

Chief Magistrate's Court at Nairobi
13 February 2014
COC.A. Otieno
6,255 words in judgment
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The bottom line

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A Nairobi court dismissed a challenge to a Garissa County Assembly nomination because the challengers could not prove a nomination letter was forged.

What this practically means

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Executive summary

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This first-instance election petition in the Chief Magistrate's Court at Nairobi concerned the nomination of Fatuma Mohammed to the Garissa County Assembly gender top-up special seat. NARC Kenya and Muhubo Omar alleged that the nomination letter dated 24th April 2013 relied upon by the IEBC to gazette the 2nd respondent was a forgery, that the 2nd respondent was not a party member and remained a serving police officer, and sought declarations and orders revoking her nomination and substituting the 2nd petitioner. The court agreed six issues with the parties at pre-trial conference and reiterated that election petition allegations must be proved by the petitioner to a standard above balance of probabilities but below beyond reasonable doubt. On res judicata, it held the prior IEBC dispute resolution committee decision and two High Court judicial review applications - one dismissed for want of service on the 2nd respondent, the other struck out as the proper avenue was an election petition - did not constitute a final determination on the merits. On eligibility, the petitioners failed to produce the party register to disprove membership, and the duty roster lacking ID or force numbers could not establish the 2nd respondent was still a police officer; the court also held that Section 43(5) of the Elections Act on resignation by public officers applies to elective contests, not nominations to special seats under Article 177. The party's secretary general disowned the 24th April 2013 letter, but given the party's use of electronic signatures, absence of evidence of authorised signatories under Section 31(3), no NEC minutes and no nomination rules tendered, the forgery was not proved. Service of the petition was upheld, no statutory service period existing. The petition was dismissed with a declaration that the 2nd respondent was validly nominated; costs against the petitioners were capped at Kshs 400,000, with none awarded against the IEBC for its failure to ensure party lists complied with the law.

Key legal issues

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01

Res judicata

Holding

The doctrine does not apply because the prior dispute resolution committee decision and the High Court judicial review applications did not amount to a hearing and final determination on the merits

Reasoning

The committee dismissed the complaint, but the first judicial review application was dismissed because the 2nd respondent had not been served, so the issues were not determined on their merits. The second judicial review was struck out on the ground that an election petition was the proper avenue. The petitioners had therefore not been heard on the same issues by a competent court, so res judicata was not made out.

p. 4
02

Eligibility of the 2nd respondent for nomination

Holding

She was eligible; petitioners failed to prove she was not a party member and failed to prove she was still a serving police officer

Reasoning

It was for the petitioners to prove non-membership, and the party register under Section 17(1)(a) of the Political Parties Act was not produced. The duty roster lacked ID or force numbers, and the name Fatuma Mohammed was common, so it could not establish she was still a police officer. Further, Section 43(5) of the Elections Act applies to elective contests, not nominations to special seats.

p. 6
03

Validity of the nomination letter dated 24th April 2013

Holding

The petitioners did not prove the letter was a forgery; the nomination was valid

Reasoning

The secretary general disowned the letter, but conceded the party used electronic signatures and that others drafted documents. The party did not avail evidence of its authorised signatories under Section 31(3), the NEC minutes, or its nomination rules under Rule 55(1). Without such evidence the alleged forgery was not proved to the required standard.

p. 11
04

Service of the petition

Holding

The petitioners complied; there is no statutory time limit for service of an election petition after filing

Reasoning

The affidavit of service sworn 29th August 2013 was not challenged and the process server was not cross-examined. The law permits personal service or advertisement, and prescribes no time for service after filing, so the 2nd respondent could not complain of late service.

p. 11

Legal principles established

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  • The burden of proving allegations in an election petition lies with the petitioner, to a standard higher than balance of probabilities but lower than beyond reasonable doubt
  • A person nominated by a political party under a party list must be a member of that party on the date of submission of the party list
  • Section 43(5) of the Elections Act requiring a public officer to resign six months before an election applies to those contesting elective posts, not those seeking nomination to special seats under Article 177(1)(b) and (c)
  • Res judicata does not apply where a prior judicial review application was dismissed without a determination on the merits
  • Generation of party lists is the sole responsibility of political parties, which must ensure their processes comply with their nomination rules

Court orders

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  1. 1.The petition is hereby dismissed
  2. 2.Declaration that Fatuma Mohammed Ali was validly nominated by Narc Kenya Party as member of the county assembly of Garissa under the gender top up category
  3. 3.The petitioners shall bear the costs of the petition as against the 2nd respondent, capped at 400,000

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 90(1); Article 97(1)(c); Article 177(1)(b) and (c)
  • Elections ActSections 13(2), 25, 25(2)(a), 31(1), 31(3), 34(6), 34(8), 43(5), 77(2)
  • Political Parties Act No. 11 of 2011Section 17(1)(a) and Second Schedule
  • Elections (General) Regulations, 2012Rule 55(1)
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 13
  • Civil Procedure ActSection 7

Cases cited (8)

  • Onalo –vs- Ondeki (2008) 3 KLR (EP) 500
    (2008) 3 KLR (EP) 500
  • Benard Shinali -vs- Boni Khalwale 2011 eKLR
    2011 eKLR
  • Raila Odinga –Vs- IEBC & 3 Others, Election Petition No.5 of 2013
    Election Petition No.5 of 2013
  • Karia and Another –vs- the Attorney General and Others (2005) 1EA 83
    (2005) 1EA 83
  • Republic vs. EL Mann Mwenda Co. Int. 1969 EARLR 357
    1969 EARLR 357
  • Petition No. 23 of 2013 Lady Justice Nancy Baraza-vs- the Judicial Service Commission (2012) eKLR
    (2012) eKLR
  • Musikari Kombo case
  • Petition No. 147 of 2013 The National Gender and Equality Commission and IEBC and 6 others
    Petition No. 147 of 2013
Jurisdiction invoked
Constitution of Kenya 2010, Article 90(1) and Article 177; Elections Act No. 11 of 2011; Elections (Parliamentary and County Elections) Petition Rules, 2013

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, "Narc Kenya & another v Independent Electoral and Boundaries Comission another [2014] KEMC 4 (KLR)", Case Analysis (2014). Election Petition No. 12 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/4/eng@2014-02-13

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