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MagistrateDismissedElection Petition No. 13 of 2013· [2014] KEMC 5 (KLR)

Dubat Ali Amey v Independent Electoral and Bounderies Commission & 3 others [2014] KEMC 5 (KLR)

Chief Magistrate's Court at Nairobi
3 February 2014
6,188 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This election petition concerned the nomination to the special seat for marginalised groups (persons with disabilities) in the Garissa County Assembly following the March 2013 general elections. The petitioner, Dubat Ali Amey, sought nullification of the nomination and gazettement of Gedi Adow Abdi and his own declaration as the duly nominated Orange Democratic Movement member. The court, designated under Section 75(1)(A) of the Elections Act, framed five issues by consent at pre-trial conference. On compliance, it held the petition met Rule 10(3) of the Election Petition Rules and that the 3rd respondent was properly served, the unchallenged affidavit of service standing. On res judicata, it found the parties differed from those in the earlier High Court judicial review (JR No. 202 of 2013) because Isaac Hassan was joined here with specific allegations, and an election petition was the proper forum. On eligibility, it held that Section 43(5) of the Elections Act requiring public officers to resign six months before an election applies only to those contesting elective posts, not special-seat nominees, and that a public officer may hold ordinary membership of a political party. On the nomination itself, the court disregarded the contradictory affidavits of ODM's secretary general and found, on the deputy secretary general's testimony and the petitioner's own affidavit, that the petitioner's name appeared in the gender top up list, not the marginalised groups list for which the seat was available. The forgery allegation was unproven. The petition was dismissed with costs to the respondents capped at Kshs.1,000,000, the interested party bearing its own costs.

Key legal issues

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01

Compliance of the petition with the Elections Act and Election Petition Rules

Holding

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)

Reasoning

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.

p. 4
02

Whether the matter is res judicata

Holding

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

Reasoning

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).

p. 6
03

Eligibility of the 3rd respondent for nomination as a former public officer

Holding

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

Reasoning

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.

p. 9
04

Whether the nomination and gazettement of the 3rd respondent was in accordance with the law

Holding

The nomination was lawful; the petitioner was in the gender top up list, not the marginalised groups list for which the seat was available

Reasoning

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.

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 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

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  1. 1.The petition is dismissed
  2. 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. 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. 4.The interested party to bear its own costs
  5. 5.The security deposit to remain in court custody and may be used towards payment of the costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 177
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 87(1)
  • Constitution of Kenya, 2010Article 90(1) and 90(2)(a)
  • Constitution of Kenya, 2010Article 194(1)
  • Constitution of Kenya, 2010Article 260
  • Elections ActSection 75(1)(A)
  • Elections ActSection 76
  • Elections ActSections 25(2)(a) and 43(5)
  • Election (Parliamentary and County Elections) Petition Rules, 2013Rules 8, 10(1), 10(3)(b), 10(4), 13(1)(a), 14, 15(2), 15(5), 34(1)(a)
  • Civil Procedure ActSection 7
  • Public Officers Ethics ActSections 2 and 16
  • Political Parties ActSection 12(1)
  • NHIF ActNo. 9 of 1998

Cases cited (15)

  • Onalo –vs- Ondeki
    (2008) 3 KLR (EP) 500
  • Benard Shinali -vs- Boni Khalwale
    2011 EKLR
  • Raila Odinga –Vs- IEBC & 3 Others
    Election Petition No.5 of 2013
  • Amina Hassan Ahmed –vs- IEBC & Others
  • Amina Hassan Ahmed -vs- Fathia Mahbub & 2 others
    Petition No. 4 of 2013
  • Ongole James Michael –vs- Electoral Commission & Ebukalin Sam
    Election Petition 0008 of 2006
  • Chrispus Fwamba & another -vs- Transition Authority, IEBC and Alex Magero, Speaker, Nairobi County Assembly
    J.R No. 110 of 2013
  • NARC Kenya & 3 others –vs IEBC & 3 others
    (2013) eKLR
  • Mumo Matemu –vs- Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Stanley Kilimo Kore -vs- Edward Katama Ngeywa & 2 others
    Nairobi High Court Petition No. 139 of 2013
  • Rose Wairimu Kamau –vs- IEBC & 3 Others
    High Court Petition No. 365 of 2013
  • Karia and Another Vs the Attorney General and Others
    (2005) 1EA 83
  • Republic vs. EL Mann
    Mwenda Co. Int. 1969 EARLR 357
  • Lady Justice Nancy Baraza -vs- the Judicial Service Commission
    Petition No. 23 of 2013 (2012) eKLR
  • Lydia Mathia –vs- Naisula Lesuuda & Anor
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.