Dubat Ali Amey v Independent Electoral and Bounderies Commission & 3 others [2014] KEMC 5 (KLR)
The bottom line
#A Kenyan court dismissed a challenge to a Garissa County Assembly disability seat nomination, confirming that being on a party's gender top up list doesn't entitle you to a marginalised groups seat.
What this practically means
#Executive summary
#Key legal issues
#Compliance of the petition with the Elections Act and Election Petition Rules
The petition complied with Rule 10(3) of the Election (Parliamentary and County Elections) Petition Rules, 2013 and the 3rd respondent was properly served under Rule 13(1)(a)
The court held the affidavit accompanying the petition set out grounds and facts relied on as required by Rule 10(3)(b). The belated complaint about respondents' answers was an afterthought, not having been among the agreed issues. The unchallenged affidavit of service established service on 27th August 2013, and the 3rd respondent bore the onus of disproving service, which he did not discharge.
Whether the matter is res judicata
The doctrine did not apply because the parties in this petition are not the same as those in JR No. 202 of 2013, the 2nd respondent being joined with specific allegations against him
The court applied Section 7 of the Civil Procedure Act and the elements in Karia v Attorney General. The pleadings in the High Court judicial review did not include Isaac Hassan as a party, whereas he was a respondent here with specific allegations made against him. Further, an election petition under Section 75(1)(A) of the Elections Act is the proper forum for questions as to validity of election of a county assembly member under Article 194(1).
Eligibility of the 3rd respondent for nomination as a former public officer
The 3rd respondent was eligible: Section 43(5) of the Elections Act applies only to public officers contesting elections, not those seeking special-seat nominations, and his mere membership of ODM was lawful
Applying the interpretive principle in Republic v EL Mann and the Baraza approach to legislative intent, the court held that had Parliament intended Section 43(5) to cover special-seat nominees it would have said so expressly. Under Section 12(1) of the Political Parties Act a public officer may be an ordinary party member; no evidence showed the 3rd respondent was a founding member, office holder, or engaged in compromising political activity.
Whether the nomination and gazettement of the 3rd respondent was in accordance with the law
The nomination was lawful; the petitioner was in the gender top up list, not the marginalised groups list for which the seat was available
The contradictory affidavits of the ODM secretary general were disregarded for lack of evidential value. The deputy secretary general's uncontroverted testimony and the petitioner's own affidavit confirmed his name appeared in the gender top up list. The forged-list allegation was unsubstantiated, the burden of proving forgery resting on the petitioner, and IEBC acted in accordance with the interested party's wishes.
Legal principles established
#- The burden of proving allegations in an election petition lies with the petitioner to a standard higher than a balance of probabilities but lower than beyond reasonable doubt
- Section 43(5) of the Elections Act requiring resignation six months before an election applies to public officers contesting elective posts, not those seeking nomination to special seats
- A public officer may be an ordinary member of a political party though barred from being a founding member or holding party office
Court orders
#- 1.The petition is dismissed
- 2.A declaration that Gedi Adow Abdi was duly and validly nominated as the member of the County Assembly of Garissa to represent people with disabilities
- 3.Costs awarded to the respondents against the petitioner, capped at Kshs.1,000,000: 1st respondent Kshs.400,000; 2nd respondent Kshs.200,000; 3rd respondent Kshs.400,000
- 4.The interested party to bear its own costs
- 5.The security deposit to remain in court custody and may be used towards payment of the costs
- Jurisdiction invoked
- Section 75(1)(A) of the Elections Act No. 24 of 2011 pursuant to Article 87(1) of the Constitution, the court having been designated by the Chief Justice to hear election petitions
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nkowua v Independent Electoral and Boundaries Commission & 4 others (Election Petition E004 of 2022) [2023] KEMC 8 (KLR)[2023] KEMC 8 (KLR)28 Feb 2023
- James Shairo Shimanyiro v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 17 (KLR)[2017] KEMC 17 (KLR)31 Oct 2017followed
Cite this brief
#Cite this brief
Caselaw, "Dubat Ali Amey v Independent Electoral and Bounderies Commission & 3 others [2014] KEMC 5 (KLR)", Case Analysis (2014). Election Petition No. 13 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/5/eng@2014-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.