Mariam Abdi Mohamud v Independent and Electoral Boundaries Commission & another [2017] KEMC 33 (KLR)
The bottom line
#Kenya's IEBC wrongfully denied a political party its county gender top-up seats, and the court ordered the lists redrawn to include the petitioner.
What this practically means
#Executive summary
#Key legal issues
#Whether the IEBC's failure to allocate any gender top-up seats to PNU, which won 3 elective seats in Wajir County, violated Articles 90(3) and 177(1)(b) of the Constitution
Yes - applying Regulation 56(2)'s formula, PNU was entitled to at least 2 nomination slots like ODM, WDM-K and NARC-K which won equal seats, and even KANU and ANC which won fewer seats received one each; the omission was discriminatory and unconstitutional.
Under Regulation 56(2) the total and available seats are constant; what varies is seats won. Parties with 3 elective seats each received 2 special seats and those with 2 received 1, yet PNU with 3 seats received none. The respondent did not deny PNU's entitlement nor explain the exclusion. Non-allocation was thus discriminatory against PNU and its members including the petitioner, whose name appeared at position 1 on the published list.
Whether non-joinder of the gazetted members of the Wajir County Assembly rendered the petition defective
No - the complaint was against the IEBC, which alone conducted the allocation; the gazetted members did not participate in the allocation, so their non-inclusion was not fatal, following Lesrima Simeon Saimanga v IEBC and Rule 2 and Rule 9 of the Petition Rules, 2017.
Rule 2 defines a respondent as the person whose election or conduct is complained of, and Rule 9 makes the Commission a mandatory respondent in every petition. Following the Lesrima decision, unless specific allegations are made against a person, joinder is unnecessary. The gazetted members took no part in allocating the special seats, so the petitioner had no complaint against them.
Whether the petitioner discharged the burden and standard of proof required in election disputes
Yes - the petitioner proved her case; the burden shifted to the respondent to justify the non-allocation, which it failed to discharge.
Relying on Raila Odinga (SC Pet No. 5 of 2013), the burden rests on the petitioner but shifts at trial, and courts must consider the totality of the evidence of all parties (Kajembe; Kithinji v Munya). The petitioner proved submission of the party list, its publication with her name at position 1, PNU's 3 elective seats, and the unequal allocations. The respondent's assertion that it applied the formula did not explain PNU's exclusion.
Whether the respondent's conduct was retrogressive as regards the two-thirds gender rule
Yes - failing to allocate PNU's special seats, thereby omitting the petitioner who was first on the gender top-up list, contravened the constitutional requirement of gender balance and was retrogressive.
Article 177(1)(b) requires special seat members to ensure no more than two-thirds of the assembly are of the same gender. The petitioner, first on PNU's published gender top-up list, would have been nominated had PNU been allocated its entitlement. In Advisory Opinion No. 2 of 2012 the Supreme Court held it is the state's duty to progressively implement the two-thirds gender rule to protect women's right to access elective office; the respondent's acts did not promote that purpose.
Legal principles established
#- Party list seats must be allocated to political parties in proportion to the total number of seats won at the general election, per Article 90(3); a party that wins the same number of elective seats as others that received top-up seats is entitled to at least the same allocation.
- The statutory formula in Regulation 56(2) leaves the total seats and available seats constant, so parties winning equal elective seats must receive equal allocations; unexplained exclusion of a qualifying party is discriminatory and violates Articles 90(3) and 177(1)(b).
- In election disputes the burden of proof lies with the petitioner throughout but may shift at trial to the respondent; the respondent failed to discharge the burden of demonstrating that a qualifying party winning 3 elective seats was not entitled to special seats.
- Non-joinder of gazetted members of the county assembly who did not participate in the allocation of special seats is not fatal to an election petition challenging the IEBC's allocation, per Rule 2 and Rule 9 of the Elections (Parliamentary and County Elections) Petition Rules, 2017.
Court orders
#- 1.The petition is allowed
- 2.An order declaring that the Gazette Notice published on 28th August 2017, vide Gazette Notice No. 8380, Vol. CX1X-No. 124, in respect to the Gender Top up List of Wajir County null and void
- 3.The Respondent to forthwith reconstitute and Gazette the gender Top up List of Wajir County, including the name of the petitioner Mariam Abdi Mohamud in compliance with the Law
- 4.The respondent to bear the costs of the petition payable to the petitioner, the costs capped at 500,000/=
- Jurisdiction invoked
- Articles 90 and 177(1)(b) of the Constitution of Kenya 2010, read with sections 34, 35 and 36 of the Elections Act, 2011 (election petition under the Elections (Parliamentary and County Elections) Petition Rules, 2017)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mariam Abdi Mohamud v Independent and Electoral Boundaries Commission & another [2017] KEMC 33 (KLR)", Case Analysis (2017). Election Petition No. 20 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/33/eng@2017-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.