Samira Abdirahman Hassan v Independent Electrol and Boundaries Commission & 8 others [2017] KEMC 34 (KLR)
The bottom line
#A Kenyan court upheld a county assembly woman nomination, ruling that ethnicity doesn't matter for gender top-up seats and challengers must prove their case to a heightened standard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 5th, 6th and 7th Respondents gave false information with regard to their ethnicity and whether ethnicity is a material consideration in nomination of gender top up seats
- 2.Whether the 5th Respondent is a registered voter in Mandera County
- 3.Whether the fact that the 5th and 6th Respondents are registered as voters in the same ward renders their inclusion in the gender top up nomination list of the 4th respondent a nullity
- 4.Whether the 5th Respondent was validly gazzetted as a nominated member of the County Assembly of Mandera
- 5.Whether the petitioner is entitled to reliefs sought
- 6.Who bears the costs
Key legal issues
#Whether false ethnicity information was given and whether ethnicity matters in gender top up nominations
Petitioner failed to prove the alleged false particulars; in any event ethnicity is not a consideration for county assembly gender top up nomination
Article 90(2)(c) requiring regional and ethnic diversity expressly excludes county assembly seats. The petitioner relied only on annexed documents from the National Bureau of Statistics without an affidavit or witness from that office, and given the heightened standard of proof in election petitions, the evidence did not suffice.
Whether the 5th Respondent was a registered voter in Mandera County
By inclusion in the party list she must have met party requirements including proof of voter registration; no contrary evidence was availed
The party's nomination rules required proof of registration as a voter before inclusion in the party list. Since the 5th respondent's name was included and the petitioner adduced no evidence to the contrary, the court presumed compliance with the party's nomination requirements.
Whether two nominees registered in the same ward rendered the list a nullity
No constitutional or legal provision bars persons registered in the same ward from being nominated; no violation established
Neither the party's nomination rules nor the Elections (Party Primaries and Party List) Regulations 2017 contain such a bar. The main consideration for gender top up nomination is gender, and Articles 81(b) and 100 principles were not shown to be breached.
Whether the 5th Respondent was validly nominated and gazetted
Yes - she topped the party list and NARC-K was entitled to only one slot, so IEBC correctly gazetted her per section 36(8) of the Elections Act
The final party list was submitted 45 days before the election and published as required. The list is valid for the term of the county assembly and cannot be amended under section 34(10) of the Elections Act. No valid reason was advanced to interfere with it.
Jurisdiction and exhaustion of dispute resolution mechanisms
Though the court found the petitioner failed to exhaust internal, IEBC and Political Parties Tribunal mechanisms, it proceeded to determine the petition on merits
Regulation 27 of the Elections (Party Primaries and Party List) Regulations 2017, Article 88(4)(e) and section 74(1) of the Elections Act, and section 40 of the Political Parties Act provide dispute mechanisms the petitioner bypassed. The court nonetheless determined the petition on its merits since it had already heard it.
Legal principles established
#- Ethnicity is not a factor for consideration in nomination for county assembly gender top up seats; the consideration is gender
- The standard of proof in election petitions is higher than the civil standard of balance of probabilities but lower than the criminal standard
- A party list submitted as required by law is valid for the term of the county assembly and is not amenable to amendment
- A litigant must exhaust statutory dispute resolution mechanisms before rushing to court by way of constitutional petition
Court orders
#- 1.The petition is dismissed
- 2.Declared Nasra Noor Mohammed as validly nominated by NARC-Kenya and gazzetted in Gazette Notice No. 8380 Vol. CXIX No. 124 of 28th August 2017 as a Member of the County Assembly of Mandera on the gender top up category
- 3.Petitioner to bear costs of the petition: costs to the 1st respondent capped at Kshs. 200,000; costs to the 2nd, 3rd, 4th and 5th Respondents capped at Kshs. 100,000 each
- 4.No costs awarded to the 6th and 7th Respondents and to the 1st and 2nd interested parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya 2010, Elections Act 2011 and Elections (Parliamentary and County Elections) Petitions Rules - election court jurisdiction over nomination/party list disputes
Relief refused
#Order to strike out names of the 5th, 6th and 7th Respondents from the NARC-K gender top up party list
Petitioner failed to discharge the burden and standard of proof required in election petitions; the list was validly submitted and is not amenable to amendment
Revocation of Gazette Notice No. 8380 Vol. CXIX No. 124 of 28th August 2017
The 5th respondent was validly nominated and gazetted as she appeared at position one of the party list
Order substituting the petitioner for the 5th Respondent and gazetting her as nominated MCA
Petitioner appeared at position (4) on the list and only one nomination slot was available; petitioner also failed to exhaust statutory dispute resolution mechanisms
Costs
Petitioner to bear costs of the petition: costs to the 1st respondent capped at Kshs. 200,000; costs to the 2nd, 3rd, 4th and 5th Respondents capped at Kshs. 100,000 each for each party; no costs awarded to the 6th and 7th Respondents and to the 1st and 2nd interested parties
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. The petition is dismissed
2. I hereby declare Nasra Noor Mohammed as validly nominated by NARC-Kenya and subsequently gazzetted in gazette Notice No. 8380 Vol. CXIX No. 124 of 28 th August 2017 by IEBC as a Member of the County Assembly of Mandera on the gender top up category.
Jurisdiction is everything. Without it, a court has no power to make one step.
The court held that the standard of proof required in Election petitions is higher than the civil standard of balance of probabilities, but lower than the criminal standard of proof beyond all reasonable doubt.
further for gender top up seats the consideration is not ethnicity but the fact that one is a female or male (gender)
the petitioner failed to exhaust the dispute resolution mechanisms as set out in the Constitution and the Election Act and the Political Parties Act
the party list was submitted as required by law and it is valid for term of the county assembly it is no amenable to amendment and no reason has been advanced to warrant the interference with the submitted party list
Issues in the judgment
#Judgment inconsistently records the order of nominees on the party list - the petitioner is variously placed at position 3 and position 4, and the 6th and 7th respondents' positions are stated differently in different passages
Heading of the third issue uses 'centricity' in the issues list but 'ethnicity' in the body of the analysis
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samira Abdirahman Hassan v Independent Electrol and Boundaries Commission & 8 others [2017] KEMC 34 (KLR)", Case Analysis (2017). Election Petition No. 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/34/eng@2017-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.