Monicah Gathoni Githae & another v Independent Electoral and Boundaries Commission & 5 others [2017] KEMC 9 (KLR)
The bottom line
#A Kenyan magistrates' court confirmed it can hear election petitions challenging nominations once IEBC has gazetted the results, and dismissed attempts to stop the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the IEBC has exclusive first-instance jurisdiction over nomination disputes after the election and gazettement
The objection fails; IEBC's jurisdiction over nomination disputes ends upon gazettement, after which only an election court may determine the dispute
Article 88(4)(e) and section 74(1) give IEBC power over nomination disputes but exclude election petitions and disputes arising after declaration of results. The Supreme Court has held the gazette notice marks completion of the nomination process. The petition was filed after gazettement of 28th August 2017, so jurisdiction had passed to the election court gazetted by the Chief Justice under section 75 of the Elections Act.
Whether constitutional and human rights reliefs can only be sought in the High Court's Constitutional and Human Rights Division
The objection is overruled; election petitions are by nature constitutional matters, and the prayers sought are capable of being granted by an election court
The Supreme Court in Election Petition No. 1 of 2015 held that a petition contesting nomination is an integral part of the electoral process and must be ventilated by a petition under section 75 of the Elections Act, not transmuted into a fundamental rights petition. The orders sought would nullify the gazettement, a remedy an election court can grant by virtue of Article 87 of the Constitution.
Whether the petition lacked a supporting affidavit rendering it fatally defective
Supporting affidavits sworn by both petitioners were filed with the petition; the objection fails
Rule 8(4) and Rule 12 of the Election Petition Rules require a petition to be supported by an affidavit sworn personally by at least one petitioner where there is more than one. The court perused affidavits of the 2nd petitioner and of the 1st petitioner, the latter also showing authorization. Case law deems such affidavits part of the pleadings. No basis was shown to invalidate the petition.
Legal principles established
#- Upon gazettement of nominated members, the IEBC's mandate over nomination disputes ends and consequential disputes shift to the election court
- A court without jurisdiction must down its tools at once
- An affidavit in support of a petition and documents annexed to it form part of the pleadings
- Converting an electoral dispute into a constitutional rights petition is impermissible
Court orders
#- 1.The preliminary objections raised by the 3rd, 4th, 5th and 6th respondents are dismissed
- 2.Costs of the preliminary objections awarded to the petitioners
- Jurisdiction invoked
- Articles 22, 23, 258 and 87 of the Constitution; Sections 75(1)(a) and 74 of the Elections Act; gazettement by the Chief Justice designating the court as an election court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monicah Gathoni Githae & another v Independent Electoral and Boundaries Commission & 5 others [2017] KEMC 9 (KLR)", Case Analysis (2017). Election Petition No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/9/eng@2017-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.