Monicah Gathoni Githae & another v Independent Electoral and Boundaries Commission & 5 others [2017] KEMC 13 (KLR)
The bottom line
#A Nyahururu court confirmed that once nominated members are gazetted, disputes over party lists belong in election courts, not the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether IEBC's jurisdiction over nomination disputes under Article 88(4)(e) and section 74(1) of the Elections Act ousts the election court's jurisdiction after gazettement
The objection fails: once the IEBC gazetted the nominated members on 28th August 2017, jurisdiction passed from the IEBC to the election court, and the court was properly gazetted by the Chief Justice to hear this election petition.
IEBC is mandated to settle nomination disputes before the electoral process is completed. The petition was filed after the elections and after gazettement of the nominees. Following Supreme Court authority, the gazette notice signifies completion of the election through nomination, finalising the process of constituting the County Assembly and shifting consequential disputes to the election court. The respondents never challenged the Chief Justice's gazette notice constituting the court.
Whether a petition seeking constitutional declarations over a party list belongs in the High Court's Constitutional and Human Rights Division rather than an election court
The objection lacks merit: election petitions are by nature constitutional matters, and the reliefs sought, which would nullify the gazettement of the nominated members, can be granted in an election court.
The court relied on the Supreme Court's treatment of an earlier Nyandarua County Assembly party-list dispute, where it was held that a petition contesting nomination was an integral part of the electoral process and that transmuting an electoral dispute into a rights violation risks a parallel dispute-resolution regime. Only an election court can annul or de-gazette nominated members.
Whether the petition is fatally defective for want of a supporting affidavit
The petition is not incompetent: supporting affidavits sworn by both petitioners were filed with the petition, and one affidavit showed the first petitioner authorised the second to swear it.
Rule 8(4) and Rule 12 of the Election Petition Rules require a petition to be supported by an affidavit sworn personally by the petitioner or by at least one of multiple petitioners. The court perused the affidavits filed with the petition and Notice of Motion, found they supported both, and found an authorisation by the first petitioner. Authorities deem affidavits filed with a petition part of the pleadings.
Legal principles established
#- Publication of the gazette notice of nominated members marks the end of the IEBC's mandate over nomination disputes and shifts any consequential dispute to the election court.
- An election court, duly gazetted by the Chief Justice, can grant orders nullifying the gazettement of nominated members; such relief is not confined to the High Court's Constitutional and Human Rights Division.
- A court downs its tools the moment it holds it is without jurisdiction.
Court orders
#- 1.The preliminary objections raised by the 4th respondent and the 3rd, 5th and 6th respondents are dismissed
- 2.Costs of the preliminary objections awarded to the petitioners
- Jurisdiction invoked
- Article 87 of the Constitution and section 75(1)(a) 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 13 (KLR)", Case Analysis (2017). Election Petition No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/13/eng@2017-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.