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MagistratePartially AllowedNyamira Chief Magistrate Election Petition No. 3 of 2017· [2017] KEMC 116 (KLR)
Damaris Nyarangi Mouni v Wafula W. Chebukati, Chairman IEBC & 3 others [2017] KEMC 116 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#A Kenyan magistrate's court ruled it had no power to hear an election petition before its official gazettement, voiding earlier orders and restarting the case from scratch.
What this practically means
#Executive summary
#This is a ruling of the Chief Magistrate's Court at Nyamira on a preliminary question of its own jurisdiction. The 1st, 2nd and 3rd Respondents argued that the court lacked jurisdiction to entertain the Petitioner/Applicant's applications dated 12/9/2017 and 25/9/2017 because the court had not yet been gazetted to handle election petitions, its gazettement having occurred on 6/10/2017 via Kenya Gazette Notice Volume CXIX – No. 147. The 4th Respondent, through Madam Michama, submitted that it had barred the Petitioner from the County Assembly because the Judge did not extend the orders of 25/9/2017 and that no Notice of Appeal had been lodged disputing the orders of 4/10/2017. The Petitioner, through Mr. Nyambati, maintained that the court had the requisite judicial and administrative powers. Applying the Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Ltd and Macharia v Kenya Commercial Bank, and relying on Article 87(1) of the Constitution and the Elections Act, the court found it had no jurisdiction before its gazettement on 6/10/2017. It set aside and discharged the proceedings and orders of 25/9/2017. It then gave directions: the Respondents were granted 7 days to file responses under section 11 of the Elections (Parliamentary and County Elections) Petition Rules, 2017; the Petitioner was to serve her pleadings under section 10, with corresponding 7 days' leave to respond; a pre-trial conference was to be scheduled within 7 days of the last response under section 15. The Petition was to be filed as Nyamira Chief Magistrate Election Petition No. 3 of 2017 and to start denovo. No costs order was made.
Key legal issues
#01
Whether the court had jurisdiction over the Petitioner's applications before its gazettement on 6/10/2017
Holding
The court held it lacked jurisdiction before 6/10/2017 and set aside the proceedings and orders of 25/9/2017
Reasoning
Relying on the Owners of Motor Vessel 'Lillian S' and Macharia v KCB, the court reasoned that jurisdiction flows from the Constitution and legislation. Article 87(1) of the Constitution and the Elections Act vested jurisdiction upon gazettement. Since the court had not been gazetted as at 25/9/2017, the proceedings and orders of that date were a nullity and were set aside, with the Petition to commence denovo.
p. 2
Legal principles established
#- A court without gazetted jurisdiction under the Constitution and the Elections Act cannot entertain election petitions or applications; jurisdiction is conferred only by the Constitution or written law
Court orders
#- 1.The proceedings and orders dated 25/9/2017 be and are hereby set aside and/or discharged
- 2.Respondents granted leave of 7 days to file and serve their responses, pleadings, witness statements and documents in compliance with section 11 of the Elections (Parliamentary and County Elections) Petition Rules, 2017
- 3.Petitioner to serve all Respondents with all her pleadings as provided under Section 10 of the Elections (Parliamentary and County Elections) Petition Rules, 2017
- 4.Petitioner granted corresponding leave of 7 days upon receipt of the Respondents' responses
- 5.Matter to be scheduled for a pre-trial conference within 7 days after the court's receipt of the last response, in compliance with Section 15 of the Elections (Parliamentary and County Elections) Petition Rules, 2017
- 6.The Petition to be filed as Nyamira Chief Magistrate Election Petition No. 3 of 2017 and to start denovo
- Jurisdiction invoked
- Article 87(1) of the Constitution 2010 and the Elections Act; gazettement via Kenya Gazette Notice Volume CXIX – No. 147 dated 6/10/2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Damaris Nyarangi Mouni v Wafula W. Chebukati, Chairman IEBC & 3 others [2017] KEMC 116 (KLR)", Case Analysis (2017). Nyamira Chief Magistrate Election Petition No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/116/eng@2017-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.