Regina Chepkemboi Chumba v Jubilee Party & 18 others [2017] KEMC 79 (KLR)
The bottom line
#A Kenyan magistrate's court confirmed it can hear petitions challenging county party list nominees once they have been gazetted.
What this practically means
#Executive summary
#Key legal issues
#Whether the designated Magistrate's Court had jurisdiction over the petition challenging nomination of party list nominees
The court held it had jurisdiction because the Chief Justice gazetted it as an Election Court under Section 75(1A) of the Elections Act, and post-gazettement nomination disputes fall to election courts.
The court reasoned that under Section 75(1A) of the Elections Act, disputes on the election of a Member of County Assembly are heard by a Resident Magistrate's Court designated by the Chief Justice, and the court was so designated. Relying on Moses Mwicigi v IEBC, gazettement of nominees signifies completion of the election through nomination, shifting consequential disputes to election courts. The respondents should have challenged the gazette notice itself rather than the court's jurisdiction.
Whether the petitioner was required to first exhaust internal dispute resolution mechanisms (IEBC DRC or Political Parties Disputes Tribunal)
The exhaustion argument did not defeat jurisdiction because the dispute arose after gazettement and was properly before an election court.
The respondents argued that under Article 88(4)(e) and Section 74(i) of the Elections Act, nomination disputes belong to the IEBC, and under Section 39 of the Political Parties Act to the Political Parties Disputes Tribunal. The court acknowledged these authorities but held that after gazettement the nominees became members of the County Assembly, and the challenge became an election dispute properly assigned by the Chief Justice to the designated court.
Legal principles established
#- Upon gazettement of party list nominees, they become members of the County Assembly and any challenge to their election lies in an Election Court.
- A subordinate court cannot overrule a gazette notice/designation issued by the Chief Justice under the Elections Act.
Court orders
#- 1.The preliminary objection on jurisdiction raised by the 2nd respondent and the interested parties is dismissed with costs
- 2.Right of appeal within 30 days
- 3.Mention on 29.11.17 for pre-trial and filing of any interlocutory application
- Jurisdiction invoked
- Article 88(4)(e) of the Constitution; Section 75(1A) of the Elections Act; gazette notice by the Chief Justice designating the court as an Election Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Regina Chepkemboi Chumba v Jubilee Party & 18 others [2017] KEMC 79 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/79/eng@2017-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.