Esther Chelimo & 2 others v Independent Electoral and Boundaries Committee & 12 others [2018] KEMC 2 (KLR)
The bottom line
#A Kenyan court dismissed a challenge to Baringo's nominated MCAs because the petitioners produced no evidence, confirming that gazetted nominees can only be challenged in an election court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Jurisdiction - whether the petitioners, having complained to the Political Parties Tribunal, were required to appeal to the High Court rather than file a fresh petition
- 2.Whether the 3rd–12th respondents had a role to play toward any irregularities arising out of the nominations conducted by the 2nd and 13th respondents and confirmed by IEBC
- 3.Whether the 2nd and 13th respondents had played their roles as required under the applicable laws and regulations
- 4.Whether the 1st respondent (IEBC) had discharged its duties as prescribed by the laws governing it and the management of elections
- 5.Whether the petitioners discharged their burden of proof on a balance of probability
- 6.Whether nullification or non-nullification would offend the relevant law and the constitution
- 7.Whether the nullification orders would be enforceable based on the party lists submitted to IEBC
- 8.Whether costs are payable and by whom
Key legal issues
#Jurisdiction of the Resident Magistrate's Court over challenges to gazetted nominated MCAs
The court has jurisdiction; once gazettlement occurs the nomination becomes an election result challengeable in an election court, and the designated Resident Magistrate's Court is that court
The respondents argued the petitioners should have appealed the Political Parties Tribunal decision to the High Court. Relying on Susan Wachuka v IEBC & AG (Petition 9 of 2017, Kabarnet) and Rahma Issak Ibrahim v IEBC [2017], the court held that gazettlement converts a nomination into an election result, attracting section 75(1A) jurisdiction in the designated Resident Magistrate's Court. The jurisdictional objection was dismissed.
Whether the nominated members (3rd–12th respondents) bore responsibility for irregularities in the nomination process
No evidence showed any nominee fell short of section 25(1) qualifications or section 25(2) disqualifications; they were properly nominated and cleared and were not to blame
Nominees were required only to apply and meet the statutory qualifications. The petitioners' allegations that some did not apply or were not residents were unsupported by documentary evidence. Section 25(1) qualifications were not shown to be lacking, and no section 25(2) disqualifying ground was proved. IEBC was mandated under Article 90(2)(a) to supervise the process, and there was no evidence it failed to do so.
Whether the political parties (2nd and 13th respondents) complied with their nomination obligations
The parties advertised, received applications and forwarded party lists to IEBC; the petitioners failed to produce the party lists, so compliance could not be faulted
Article 177(2) required nomination in proportion to seats won. Jubilee and KANU advertised vacancies, received applications and submitted lists which IEBC reviewed and returned for clarification before gazettement. The court could not determine compliance without the actual party lists, which the petitioners never produced: it cannot condemn what it has not seen.
Whether IEBC discharged its statutory duty
IEBC received and evaluated the party lists, raised clarification issues with the parties and gazetted the names on priority basis as presented; no breach was proved
The evidence showed IEBC received the lists from both parties on 18 and 19 July 2017, evaluated them, returned them for rectification of non-voter and non-member issues, and gazetted successful nominees on 28/8/17. Section 34(10) prohibited amendment of the party list during the term of the County Assembly, so IEBC could not alter the priority listing. The petitioners proved no failure.
Whether the petitioners proved exclusion of persons with disabilities, the marginalized and minorities on a balance of probability
The petition was dismissed - no person was shown to have applied under the disability category and been denied a chance; the 3rd respondent was validly nominated under the marginalized category
No claimant under the disability category testified; the alleged disabled applicants (Edwin Kipserem Kandie, Rodges Kipkurui, Regina Sarich) neither sued nor testified. Section 36(1)(f) minima were minimums for selection on priority, which was the sole mandate of the parties. The 3rd respondent, over 70 years and from Kerio Valley hardship area, was rightly nominated under the marginalized category. Regional balance was not constitutionally required for county assemblies.
Nullification of Gazette Notice Vol. CXIX No. 124 of 28/8/17
The court had no mandate to nullify the gazette notice without the party lists or proof that gazetted members were not those presented
Section 34(10) of the Elections Act bars amendment of a party list during the assembly's term, which commences at gazettement. Unlike the Migori case, where gazetted names were not those approved by the tribunal, here there was no proof of substitution. Political parties hold the sole mandate over priority listing, per Moses Mwicigi v IEBC and Peninah Nandako Kiliswa v IEBC.
Legal principles established
#- Once a member has been gazetted as duly nominated that becomes an election result challengeable only in an election court
- A Resident Magistrate's Court designated by the Chief Justice has jurisdiction to hear and determine an election petition regarding County Assembly members
- It is the responsibility of political parties, not courts or IEBC, to determine which members are included in a party list, in which category and in what order of priority
- The statutory minimum candidates per party list (including two persons with disability, two youth and two from marginalized groups) are minimums for selection, not automatic gazettement
Court orders
#- 1.The petition is dismissed
- 2.No costs awarded to the 1st, 2nd and 13th respondents
- 3.The 3rd–12th respondents awarded costs, to be paid from the Kshs. 100,000/- deposited in court, shared equally at Kshs. 10,000/- per respondent
- 4.Parties to be supplied with proceedings and judgment at a fee as required
- 5.30 days stay granted on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 75(1A) of the Elections Act - a question of the validity of the election of a member of a County Assembly shall be heard and determined by the Resident Magistrate's Court designated by the Chief Justice
Relief refused
#Declaration that the list of nominated MCAs published in Kenya Gazette Vol. CXIX-No.124 of 28/8/17 is unconstitutional and nullified under Article 81
Petitioners failed to prove that any person applied under the disability category and was denied a chance; court lacked the party lists and had no power to nullify without proof that gazetted members were not those presented for nomination
Declaration that the nominated list failed to consider the rights of the marginalized and persons with disabilities
No person claiming to have applied under the disability category appeared or gave evidence; categories were equal and selection was on priority basis as listed by political parties
Consequential orders that the Baringo County MCA list be nullified and the laws relating to vacancy in the office of the Governor ensue
Petition dismissed; nominees lawfully nominated and gazetted
Costs
Petition dismissed with costs to the 3rd–12th respondents only, payable from the Kshs. 100,000/- deposited in court, distributed equally at Kshs. 10,000/- per respondent; no costs to the 1st, 2nd and 13th respondents; 30 days stay granted on costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The petition herein is thus dismissed with costs to the 3-12th respondent as the petitioners were unable to prove as required that indeed there were disable persons that had applied and denied a chance by the 1st, 2nd and 3rd respondents under the disability category.
The amount deposited in court to serve as final costs assessed for the 3rd - 12th respondent which amount will be distributed equally at Kshs. 10,000/= per a person/respondent.
once a member has been gazetted as duly nominated that becomes an election result and anyone unhappy with that result can only challenge it as an election dispute in an election court.
This court had no mandate to nullify the said gazette notice as it had no chance to see the lists presented to IEBC nor does it process any powers by law to do so without prove that indeed the gazetted members were not the ones that were presented for nomination.
To my understanding it is not a must that the nominated person shall be automatically be gazetted as members of the County Assembly. Those are to me minimums for selection which will be listed on priority.
priority herein is the sole mandate of the political parties.
Issues in the judgment
#The conclusion orders costs against the 1st, 2nd and 3rd respondents although the operative orders and earlier costs discussion exempt the 1st, 2nd and 13th respondents and award costs only to the 3rd–12th respondents - the reference to '3rd' appears to be a typographical error for '13th'
Contradiction within the costs discussion: the court first declines to award costs to any party for civil education failures but then awards costs to the 3rd–12th respondents from the deposited sum
The judgment states the petition is 'dismissed with costs to the 3-12th respondent' but the deposition records the petitioners' advocate and the 4th–12th respondents' advocate only, and the case number of the petition itself is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Chelimo & 2 others v Independent Electoral and Boundaries Committee & 12 others [2018] KEMC 2 (KLR)", Case Analysis (2018). Not stated in the judgment (election petition, Resident Magistrate's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/2/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.