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MagistrateDismissedElection Petition No. 1 of 2017· [2017] KEMC 23 (KLR)

Hellen Ndiko Kigia & 2 others v Independent Electral Boundaries Commission & another [2017] KEMC 23 (KLR)

Chief Magistrate's Court at Murang'a
4 December 2017
MWM. W. Wachira
10,555 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~42 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Three petitioners, members of Jubilee Party, challenged the Murang'a County Assembly nomination list gazetted by the IEBC on 28th August 2017, claiming the list omitted their names, disregarded a list allegedly compiled by the 3rd Petitioner for Gatanga Constituency, and failed to reflect persons with disabilities, marginalized groups and ethnic diversity as required by Articles 100 and 177 of the Constitution. They sought declarations of non-compliance, infringement of their rights, nullity of the removal of their names, and an order including the 1st and 2nd Petitioners in the gender top-up list. The IEBC answered that the resubmitted list (following PPDT proceedings instituted by third parties) did not contain the petitioners' names, that party list preparation is an internal party affair, and that it allocated the four marginalized-group seats in the order given by the party under section 36(8) of the Elections Act. Jubilee Party denied giving the 3rd Petitioner any mandate and noted its appeal against the PPDT decision had succeeded. Framing three issues - compliance with nomination law, burden of proof, and jurisdiction - the court held that party list preparation is the sole duty of political parties; that the petitioners failed to prove breaches of Jubilee's nomination rules or the 3rd Petitioner's authority, producing no membership register; and that they bypassed the mandatory IEBC and PPDT dispute resolution mechanisms and failed to join adversely affected nominated members. All declarations and orders sought were declined and the petition was dismissed with costs to the Respondents.

Key legal issues

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01

Compliance with law on party list nominations

Holding

The IEBC acted within the law in gazetting the list submitted by Jubilee Party; preparation of the list is an internal party affair

Reasoning

The court found the selection of nominees is the sole responsibility of the political party under Article 90(2)(a) read with sections 31 and 34 of the Elections Act. The resubmitted list did not contain the 1st and 2nd Petitioners' names, and the IEBC drew the gazetted nominees in the order given by the party per section 36(8). The court found no evidence that the 3rd Petitioner had authority to compile a party list for Jubilee Party.

p. 9
02

Burden of proof

Holding

Petitioners failed to discharge the burden of proving breaches of nomination rules

Reasoning

Applying sections 107–112 of the Evidence Act and Raila Odinga v IEBC, the petitioners were required to produce cogent evidence, including the Jubilee Party membership register and the party's nomination rules, which they did not. They also failed to prove the 3rd Petitioner's mandate to compile a list. Allegations of nepotism and improper inclusion of a Democratic Party nominee were unproven for want of the register.

p. 11
03

Jurisdiction and exhaustion of dispute resolution mechanisms

Holding

The court lacked jurisdiction because the Petitioners bypassed the IEBC and PPDT dispute resolution mechanisms

Reasoning

Article 88(4)(e) and section 74 of the Elections Act vest settlement of nomination disputes in the IEBC; section 40 of the Political Parties Act vests internal party disputes in the PPDT. The Petitioners never lodged complaints with either body - the PPDT decisions on record were filed by third parties. Failure to join the adversely mentioned nominated members was also fatal, denying them a hearing.

p. 18

Legal principles established

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  • Generation of party lists is the sole duty of political parties, undertaken per the party's own constitution and rules
  • Disputes arising from nominations must first be lodged with the IEBC or the Political Parties Disputes Tribunal before approaching the court
  • The petitioner bears the legal and evidential burden of proving non-conformity with electoral law and that it affected validity

Court orders

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  1. 1.The Petition is dismissed with costs to the Respondents
  2. 2.Declarations sought that the Murang'a County nomination list does not comply with articles 100(b), (d), (e) and 177 of the Constitution declined
  3. 3.Declaration that the 1st Respondent exceeded its powers declined
  4. 4.Declarations that the Petitioners' rights under Article 177 were infringed and that removal of the 1st and 2nd Petitioners' names was null and void declined
  5. 5.Prayer for inclusion of the 1st and 2nd Petitioners in the Gender top-up list declined

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 84, 88, 90, 91, 92, 97, 98, 100, 177
  • Elections Act, No. 24 of 2011Sections 25, 31, 34, 35, 36, 74
  • Elections (General) RegulationsRegulations 54(8), 55, 56(2)
  • Independent Electoral and Boundaries Commission ActSection 4
  • Political Parties Act, No. 11 of 2011Sections 17(1)(a), 39(1), 40
  • Evidence ActSections 107–112

Cases cited (15)

  • Rose Wairimu Kamau Vs. IEBC (2013) eKLR
    (2013) eKLR
  • Isaack Osman Sheikh Vs. IEBC & 2 Others (2014) eKLR
    (2014) eKLR
  • Commission for Implementation of the Constitution Vs. the Attorney General (2013) eKLR
    [2013] eKLR
  • National Gender and Equality Commission Vs. Independent Electoral and Boundaries Commission & Another [2013] eKLR
    [2013] eKLR
  • Zaituni Abdalla Kabocho Vs. Jubilee Party, PPDT Complaint No. 545 of 2017
    null
  • Agnes Ndunge Mutwiri Vs. Jubilee Party, PPDT No. 480 of 2017
    null
  • Jubilee Party Vs. Agnes Ndunge Mutwiwa, Election Nomination Appeal 31 of 2017 [2017 eKLR]
    [2017] eKLR
  • Lydia Mathia Vs. Naisura Lesuda and IEBC, Election Petition No.13 of 2013
    null
  • Raila Odinga –Vs- IEBC & 3 Others, Election Petition No.5 of 2013
    null
  • Isaiah Gichu Ndirangu & 2 others v IEBC & 4 others, Constitutional Petition No.83 of 2015
    null
  • The Owners Of Motor Vessel "Lillian S" vs Caltex Oil Kenya Ltd [1989] KLR 1
    [1989] KLR 1
  • Macharia and Another vs Kenya Commercial Bank Ltd and 2 Others, Civil Application No. 2 of 2011
    null
  • Peter Ochara Anam and 3 Others vs Constituencies Development Fund Board and 4 Others, Kisii High Court Petition No 3 of 2010
    null
  • Republic vs Speaker of County Assembly of Nyandarua and Another Exparte David Mwangi Ndirangu, Miscellaneous Application No.414 of 2013
    null
  • Narc Kenya and Another vs Independent Electoral and Boundaries Commission Another, Election Petition No.12 of 2013
    null
Jurisdiction invoked
Article 88(4)(e) of the Constitution; Elections (Parliamentary and County Elections) Petition Rules, 2017

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hellen Ndiko Kigia & 2 others v Independent Electral Boundaries Commission & another [2017] KEMC 23 (KLR)", Case Analysis (2017). Election Petition No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/23/eng@2017-12-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.