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MagistrateOtherNot stated in the judgment as provided· [2017] KEMC 77 (KLR)

Rose Moturi Mwene v Independent Electoral and Boundaries Commission & 3 others [2017] KEMC 77 (KLR)

Resident Magistrate's Court (Gazetted Election Court), Kisii
15 November 2017
VKV. Karanja
2,131 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate's court ruled that once a party-list nominee is gazetted and sworn in, they can only be removed through an election petition.

What this practically means

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Executive summary

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The Petitioner was nominated by the 2nd Respondent (Jubilee Party) to the Kisii County Assembly Gender Top Up List pursuant to Articles 90 and 177(1)(b) of the Constitution and Sections 34 and 35 of the Elections Act. She was gazetted and sworn in on 7th September 2017. On 8th September 2017 the 1st and 2nd Respondents published a Corrigenda deleting her name and replacing her with the 3rd Respondent, after correcting an anomaly whereby the 3rd Respondent had been listed as 'male' instead of 'female'. The 3rd Respondent raised a preliminary objection contending that the court lacked jurisdiction, that the dispute belonged to the High Court under Article 165 and/or the Political Parties Tribunal under Section 40 of the Political Parties Act, and that the petition was an abuse of process. The 1st Respondent supported the objection, arguing it acted within its statutory mandate under Sections 35 and 36(7) of the Elections Act. The Petitioner countered that the dispute was outside the tribunal's remit, that the gazettement and swearing-in divested the IEBC and the tribunal of jurisdiction, and that the challenge could only proceed by election petition. Relying on theOwners of Motor Vessel 'Lilian' doctrine and the Moses Mwicigi and NGEC authorities, the court held that challenges to a party list should be raised before gazette publication and assumption of office; thereafter the only remedy is an election petition before a gazetted court. The dispute did not fall under Section 40 of the Political Parties Act. The preliminary objection dated 28th September 2017 was dismissed with costs in the cause.

Key legal issues

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01

Jurisdiction over a party-list nomination dispute after gazettement and assumption of office

Holding

The Magistrate's Court, as a gazetted election court, has jurisdiction; the Political Parties Tribunal does not, once the nominee has been gazetted and sworn in

Reasoning

The court held that challenges to a party list should ideally be raised before publication of the Gazette Notice and assumption of office. Once the named persons have assumed office, the nomination can only be challenged by election petition in a gazetted court. The IEBC is excluded under Article 88(4)(e) from election petitions and disputes subsequent to declaration of results, and the dispute does not fall under Section 40 of the Political Parties Act.

p. 5
02

Whether the dispute falls to the Political Parties Tribunal under Section 40 of the Political Parties Act

Holding

No - the dispute does not fall within Section 40, so the tribunal's jurisdiction is not triggered

Reasoning

The 1st and 3rd Respondents argued the matter concerned party nomination and belonged to the Political Parties Tribunal. The court disagreed, holding the dispute did not fall under Section 40 of the Political Parties Act, particularly as the Petitioner had already been gazetted and sworn in and the challenge arose only upon publication of the Corrigenda after assumption of office.

p. 5
03

Primacy of jurisdiction - effect of a preliminary objection on jurisdiction

Holding

A jurisdictional objection must be determined before the merits; without jurisdiction the court cannot make any move

Reasoning

Relying on Owners of Motor Vessel 'Lilian' v Caltex Oil Kenya Ltd as submitted by the 3rd Respondent, the court accepted that once jurisdiction is raised the court must down its tools and deal with that issue first, without dwelling on the merits of the petition.

p. 4

Legal principles established

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  • Legal challenges to a party list should be raised before publication in the Gazette Notice and assumption of office; thereafter the nomination can only be challenged by way of election petition before a gazetted court

Court orders

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  1. 1.Dismissal of the preliminary objection dated 28th September 2017
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 90; Article 88(4)(e); Article 177(1)(b); Article 165
  • Elections Act No. 24 of 2011Sections 34(1) and (4), 35, 36(6) and (7), 74, 75(1)
  • Political Parties Act, 2011Sections 40, 40(1)(a) and (b), 41
  • Political Parties Tribunal Act No. 11 of 2011Sections 39, 40
  • Elections General RegulationsRegulations 54(8), 55, 56

Cases cited (5)

  • Esther Gachambi Mwangi –vs- Samuel Mwangi Mbiri
    [2013] KLR
  • Owners of Motor Vessel 'Lilian' –vs- Caltex Oil Kenya Limited
    [1989] KLR
  • Erick Kyalo Mutua –vs- Wiper Democratic Movement Kenya & Another
    [2017] KLR
  • Moses Mwicigi & 14 Others
  • National Gender and Equality Commission (NGEC) –vs- I.E.B.C
    Constitutional Petition No. 147 of 2013
Jurisdiction invoked
Gazetted election court under the Elections Act No. 24 of 2011 (Article 88(4)(e) of the Constitution excludes the IEBC from disputes subsequent to declaration of results)

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, "Rose Moturi Mwene v Independent Electoral and Boundaries Commission & 3 others [2017] KEMC 77 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/77/eng@2017-11-15

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