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MagistrateStruck OutElection Petition (Makina Ward MCA), Kibera Law Courts· [2017] KEMC 8 (KLR)

Alhad Adam Ahmed v Solomon Odanga Magembe alias Solomon Beatrice Saki Muli & 4 others [2017] KEMC 8 (KLR)

Resident Magistrates' Court (Election Court), Kibera Law Courts
24 November 2017
9,394 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, a registered voter and losing ODM candidate, petitioned seeking declarations that the nomination of the 1st respondent by the Party of Democratic Unity was irregular under Section 28 of the Elections Act and that the 1st respondent's election as Member of County Assembly for Makina Ward was null and void. He alleged that the 1st respondent defected from ODM to PDU outside the statutory 120-day window, that IEBC irregularly cleared him, and that he used NASA symbols and Raila Odinga's photograph to deceive voters, contrary to the Election Offences Act. The respondents and the 2nd interested party filed preliminary objections on jurisdiction and the 1st respondent applied to strike out the petition for want of timely service and for failing to impugn the conduct of the election itself. The court identified six issues and held that the election court's jurisdiction is confined to the voting, counting, tallying and declaration of results; nomination and campaign-period complaints fall within the IEBC Dispute Resolution Committee under Article 88(4)(e) and Section 74 of the Elections Act. No complaint was raised about the conduct of the election on 8/8/2017 or the declaration of results. On service, the court noted it had already suo moto extended time and held that failure to serve was not sufficient ground to strike out. However, lacking jurisdiction over the nomination and election-offence complaints, the court downed its tools, allowed the application, upheld the preliminary objections, struck out the petition, and declared Solomon Odanga Magembe validly elected, with each party bearing its own costs and a 30-day right of appeal.

Key legal issues

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01

Whether the Resident Magistrates' Court sitting as an election court had jurisdiction over a petition founded on nomination disputes and campaign-period malpractices

Holding

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.

Reasoning

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.

p. 17
02

Whether failure to serve the petition within the statutory 15 days warranted striking out

Holding

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.

Reasoning

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.

p. 11
03

Whether alleged use of NASA symbols and Raila Odinga's photograph amounted to an electoral malpractice justifying nullification

Holding

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.

Reasoning

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.

p. 16

Legal principles established

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  • 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

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  1. 1.The application dated 16/10/17 allowed as prayed in terms of prayer 4
  2. 2.Preliminary objections raised by the Respondents and the 2nd Interested Party upheld
  3. 3.Petition struck out for want of jurisdiction
  4. 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. 5.Each party to bear its own costs
  6. 6.Right of appeal to be exercised within 30 days from the date of the judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 10, 23(1)(2), 27(1), 38, 48, 50, 81, 86, 87(1), 87(3), 88(4)(e), 105(2), 159(2)(d)
  • Elections Act, 2011Sections 4, 9, 10, 28, 62, 74(1), 75(1)(a), 75(1A), 75(2), 75(3), 76(1)(a), 77, 87(1)
  • Election Laws (Amendment) Act, 2017Section 10
  • Election Offences Act No. 37 of 2016Sections 6(j) and (k), 9(1)(b), 10(1)(a), 13(a)
  • IEBC ActSection 4(e)
  • Elections (General) Regulations, 2012not specified
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rules 10(1), 20

Cases cited (18)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    Civil Appeal No. 9 of 1969
  • The Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Ltd
    1989 (KLR)
  • Macharia and Another v Kenya Commercial Bank Ltd and 2 others
    Civil Application 2/2011 (2012) eKLR
  • Isaiah Gichu Ndirangu and 2 others v IEBC and 4 others
    Petition No. 83 of 2015 (2016) eKLR
  • Dr Billy Elias Nyonje v National Alliance Party of Kenya and Another
    (2013) eKLR
  • Charles Kamuren v Grace Jelagat Kipchom & 2 Others
    [2013] eKLR
  • Mary Emaase Otucho v Geoffrey Omuse & another
    [2017] eKLR
  • Michael Gichuru v Rigathi Gachagua & 2 others
    [2017] eKLR
  • Moses Masika Wetangula v Musikari Nazi Kombo & 2 others
    [2015] eKLR
  • Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others
    [2016] eKLR
  • Aden Noor Ali v Independent Electoral & Boundaries Commission & 3 others
    [2017] eKLR
  • Matter of the Interim Independent Electoral Commission
    Constitutional Application No. 2 of 2011 (unreported)
  • Khatib Abdalla Mwashetani v Gideon Mwangangi Wambua & 3 others
    [2014] eKLR
  • Mary Wangari Mwangi v John Omondi Ogutu & 2 others
    [2013] eKLR
  • Shiv Kripal Singh v Giri
    AIR 1970 SC 2097
  • Mohamed Odha Mora v The County Returning Officer, Tana River & Others
    Malindi Election Petition No. 15 of 2013
  • Francis Parsimei Gitau v National Alliance Party and another
    null
  • Homabay HC, JR, Misc App No. 36 of 2017
    null
Jurisdiction invoked
Section 75(1A) of the Elections Act, 2011 (question as to validity of election of a Member of County Assembly)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.