Alhad Adam Ahmed v Solomon Odanga Magembe alias Solomon Beatrice Saki Muli & 4 others [2017] KEMC 8 (KLR)
The bottom line
#A losing MCA candidate's petition failed because Kenyan election courts cannot hear complaints about party nominations or campaign conduct, only the voting and counting itself.
What this practically means
#Executive summary
#Key legal issues
#Whether the Resident Magistrates' Court sitting as an election court had jurisdiction over a petition founded on nomination disputes and campaign-period malpractices
The court lacked jurisdiction; nomination disputes and campaign-period complaints fall within the IEBC dispute resolution mechanism, and the election court's jurisdiction is confined to the election-day process and declaration of results.
Article 88(4)(e) of the Constitution and Section 74(1) of the Elections Act vest jurisdiction over nomination disputes in the IEBC. The petition raised no complaint about voting, counting, tallying or declaration of results. Superior court authorities (Isaiah Gichu Ndirangu, Dr Billy Elias Nyonje, Francis Parsimei Gitau) confirm that nomination disputes must first go to the Commission, and a court must down its tools where it lacks jurisdiction.
Whether failure to serve the petition within the statutory 15 days warranted striking out
The court had already suo moto extended time for service; failure to effect service within the extended period was not, in itself, sufficient ground to strike out the petition.
The court had earlier extended time for service in the interest of justice, guided by the case law distinguishing statutory timelines for service of the petition from timelines fixed by the Rules. Although the timeline in Section 76(1)(a) is peremptory, the court had already exercised its discretion to extend and declined to strike out on this ground alone, the petition ultimately falling on jurisdiction.
Whether alleged use of NASA symbols and Raila Odinga's photograph amounted to an electoral malpractice justifying nullification
Such allegations would amount to undue influence, an electoral malpractice of a criminal nature, which the election court can only note for referral to the DPP but cannot determine as an election offence; in any event the petitioner was in the wrong forum.
Section 87 of the Elections Act permits the election court at the conclusion of a petition to determine whether an electoral malpractice of a criminal nature occurred and to transmit its finding to the DPP, but the court cannot determine election offences. The petitioner reported nothing to the relevant authorities and remains at liberty to approach law enforcement agencies.
Legal principles established
#- An election court's jurisdiction is invoked on issues touching on the processes during voting, counting, tallying and declaration of results, not pre-nomination and pre-election issues
- Disputes relating to or arising from nominations fall within the mandate of the IEBC Dispute Resolution Committee under Article 88(4)(e) of the Constitution and Section 74 of the Elections Act
- An election court may determine whether an electoral malpractice of a criminal nature occurred but is not seized with jurisdiction to determine an election offence
- A court without jurisdiction must down its tools
Court orders
#- 1.The application dated 16/10/17 allowed as prayed in terms of prayer 4
- 2.Preliminary objections raised by the Respondents and the 2nd Interested Party upheld
- 3.Petition struck out for want of jurisdiction
- 4.Declaration that Solomon Odanga Magembe was validly elected Member of County Assembly for Makina Ward in the general elections held on 8th August 2017
- 5.Each party to bear its own costs
- 6.Right of appeal to be exercised within 30 days from the date of the judgment
- Jurisdiction invoked
- Section 75(1A) of the Elections Act, 2011 (question as to validity of election of a Member of County Assembly)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others[2019] KESC 54 (KLR)8 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Alhad Adam Ahmed v Solomon Odanga Magembe alias Solomon Beatrice Saki Muli & 4 others [2017] KEMC 8 (KLR)", Case Analysis (2017). Election Petition (Makina Ward MCA), Kibera Law Courts. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/8/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.