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MagistrateDismissedNot stated in judgment· [2017] KEMC 79 (KLR)

Regina Chepkemboi Chumba v Jubilee Party & 18 others [2017] KEMC 79 (KLR)

Resident Magistrate's Court (designated Election Court)
13 November 2017
1,306 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan magistrate's court confirmed it can hear petitions challenging county party list nominees once they have been gazetted.

What this practically means

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Executive summary

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This ruling of a Resident Magistrate's Court designated as an Election Court by the Chief Justice determined a preliminary objection by the 2nd respondent and the interested parties to a petition challenging the nomination of 1st-17th interested parties to the County Assembly on the ground that the party list failed to take into account persons with disability. The objectors contended that the court lacked jurisdiction because nomination disputes fall to the IEBC under Article 88(4)(e) of the Constitution and Section 74(i) of the Elections Act, and to the Political Parties Disputes Tribunal under Section 39 of the Political Parties Act; they further argued limitation, competency under Regulation 99(2) of the Elections (General) Regulations 2012, and want of security under Section 78 of the Elections Act. The petitioner relied on the Chief Justice's gazette notice designating the court under Section 75(1A) of the Elections Act and on the overriding objective of access to justice. The court held that upon gazettement party list nominees become members of the County Assembly, that following Moses Mwicigi v IEBC such consequential disputes shift to election courts, and that the court, being duly gazetted, had jurisdiction. The respondents should have challenged the gazette notice itself. The preliminary objection was dismissed with costs, with a right of appeal within 30 days, and the matter set down for pre-trial mention on 29.11.17.

Key legal issues

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01

Whether the designated Magistrate's Court had jurisdiction over the petition challenging nomination of party list nominees

Holding

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.

Reasoning

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.

p. 3
02

Whether the petitioner was required to first exhaust internal dispute resolution mechanisms (IEBC DRC or Political Parties Disputes Tribunal)

Holding

The exhaustion argument did not defeat jurisdiction because the dispute arose after gazettement and was properly before an election court.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The preliminary objection on jurisdiction raised by the 2nd respondent and the interested parties is dismissed with costs
  2. 2.Right of appeal within 30 days
  3. 3.Mention on 29.11.17 for pre-trial and filing of any interlocutory application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 48, 50(e), 87(2), 88(4)(e), 159(2)
  • Elections ActSections 74(i), 75(1A), 75, 76, 78
  • Political Parties ActSection 39
  • Elections (General) Regulations 2012Regulation 99(2)
  • Elections (Parliamentary and County Elections) Petition RulesSections 5 and 21(i)

Cases cited (9)

  • Isaiah Gichu Ndirangu vs IEBC
    Pet. 83/2015; (2016) eKLR
  • Dr. Nyonje vs TNA
    JR 61/2013
  • Beatrice Nyaboke vs IEBC
    2013 eKLR
  • Katiba Institute vs IEBC
  • Milka Masungo vs Robert Wekesa
    (2013) eKLR
  • Moses Mwicigi vs IEBC
    (2016) eKLR
  • Rose Wairim Kamau vs IEBC and 3 others
    No. 365(i)
  • National Gender vs Commission
    147/13
  • Abdi Noor AG vs IEBC
    (2017) eKLR
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

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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, "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.