Jane Njeri Kamande v Anthony Njomo Mania & 3 others [2017] KEMC 36 (KLR)
The bottom line
#A Kenyan election court nullified an MCA's election because he switched parties within 120 days of the election, breaking the law.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrate's Court over party-hopping/nomination-based challenges to an MCA election
The court had jurisdiction; an election by ballot and by nomination are both elections and disputes thereon belong to the election court, especially where no other body conclusively determined the dispute.
Relying on the Supreme Court in Moses Mwicigi v IEBC, the court held that election courts are the Judiciary's forum for electoral disputes, including nomination-related contests. The petitioner's witness had pursued the IEBC Dispute Resolution Committee and the High Court in Mombasa, both avenues failing (dismissed without hearing; struck out for lack of jurisdiction). There was thus no estoppel on record, and the gazetted election court for Lamu County could properly entertain the petition.
Whether the 1st Respondent breached section 28 of the Elections Act by moving to P.D.U within 120 days of the election
Yes. The petitioner discharged her burden; the 1st Respondent moved from Jubilee Party to P.D.U within the 120-day window after losing the Jubilee primaries.
The court found the petitioner's evidence (agents, nomination results, social media posts, Registrar of Political Parties correspondence) established that Njomo participated in the Jubilee primaries on April 26, 2017, lost, first announced an independent bid, then stood on a P.D.U ticket. His unexplained alterations to his resignation letter and P.D.U's implausible account of membership held 'in abeyance' failed to rebut this. His participation was an illegality that affected the outcome.
Whether the party list must be submitted before or after party primaries
The party list is to be presented after the party primary has been conducted, per Regulation 16 of the Elections (Party Primaries and Party Lists) Regulations, 2017; this is independent of section 28.
Regulation 16 requires primaries save where only one aspiring candidate applies. The 120-day rule in section 28 only becomes relevant where a candidate seeks to move to another party within that window. The court noted the 2017 cycle was the first with party primaries and many parties held them after the 120-day window closed.
Whether documents were fabricated after the filing of the petition
No evidence of post-filing fabrication; but the shifting evidential burden left the 1st and 2nd Respondents' affidavits and testimony with glaring holes.
Applying section 107 of the Evidence Act and the Joho v Nyange and Raila Odinga burden-of-proof principles, the court found no proof of post-petition fabrication. However, the 1st Respondent did not explain altered dates on his resignation letter, and the 2nd Respondent's explanation of membership in abeyance from March 17 to April 8, 2017 was not plausible.
Whether the 1st Respondent committed an offence under the Election Act warranting disqualification
The Elections Act contains no such offence; the Election Offences Act, 2016 does not cover candidate party-hopping, but the DPP may determine an appropriate charge.
The court observed that the Election Offences Act, 2016 provides for offences but none touching specifically on breaches by candidates of this nature. It nonetheless declared an offence committed, noted Chapter 6 of the Constitution and the Leadership and Integrity Act bind Njomo as a state officer, and recommended law reform to cover candidate conduct.
Admissibility and weight of social media (Facebook) evidence
The Facebook posts were admissible: parties had agreed at pre-trial, under section 78A of the Evidence Act, to have electronic evidence admitted, and it was uncontested.
The Pre-Trial Agreement under rule 15 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 recorded agreement to admit electronic evidence; counsel for the 2nd Respondent expressly allowed it. The court, drawing on Justice Estcourt's article, noted authenticity challenges are tested by cross-examination and found Njomo's denials unconvincing given the matching name on his P.D.U poster.
Whether the election met the section 83 Elections Act / Article 81 constitutional threshold
The election failed the threshold: the breach of section 28 was a substantial violation of electoral law, satisfying the first limb of section 83 applied disjunctively.
Following the Supreme Court's majority in Presidential Petition No. 1 of 2017, the two limbs of section 83 apply disjunctively. The petitioner proved the conduct of the election substantially violated the Constitution and written law by inclusion of an illegally party-hopping candidate; the election in Bahari Ward was therefore not free and fair and the illegality affected the outcome.
Legal principles established
#- An election is a process and not an event; disputes arising from nomination stages bearing on the election may be litigated in an election petition after the election, where the issues have not been conclusively determined by another constitutionally mandated body.
- A candidate who moves from one political party to another within 120 days of a general election breaches section 28 of the Elections Act, and such illegality affecting the result may invalidate the election.
- The two limbs of section 83 of the Elections Act apply disjunctively: proof of substantial violation of constitutional and legal electoral principles alone suffices to void an election.
- The burden of proof in election petitions lies on the petitioner to a standard higher than a balance of probabilities but below beyond reasonable doubt, with the evidential burden shifting.
Court orders
#- 1.A declaration that I.E.B.C's inclusion of Anthony Njomo Maina of P.D.U party as candidate and his participation in the general election on August 8, 2017 was a substantial breach of Electoral Law, Election Act and the Constitution on account of illegal party hopping and hence invalid, null and void ab initio
- 2.A declaration that Anthony Njomo Maina's election as winner for member of County Assembly in the general election of August 8, 2017 is invalid, null and void ab initio on account of being incompetent and unqualified to be elected on a P.D.U ticket
- 3.A declaration that Anthony Njomo Maina committed an offence under the Election Act and ought to be disqualified from participating in an election
- 4.A declaration that Mr. Joseph Githuku Kamau - MCCP, who garnered the highest votes, was validly elected as Bahari Ward member of the County Assembly of Lamu
- 5.Costs of Kshs 500,000 awarded to the petitioner: 1st and 2nd Respondents jointly to pay costs capped at Kshs 250,000 and 3rd and 4th Respondents jointly to pay costs capped at Kshs 250,000
- 6.A certificate of determination in accordance with section 86 of the Elections Act to issue to the Independent Electoral and Boundaries Commission and the Speaker of the Lamu County Assembly
- Jurisdiction invoked
- Section 75(1A) of the Elections Act - Resident Magistrate's Court designated by the Chief Justice to hear questions as to the validity of election of a member of a county assembly; gazetted election court for Lamu County
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Njeri Kamande v Anthony Njomo Mania & 3 others [2017] KEMC 36 (KLR)", Case Analysis (2017). Election Petition No 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/36/eng@2017-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.