Omari Wanjiku Esha v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 4 (KLR)
The bottom line
#A Nyeri court nullified a county assembly nominee's election, ruling that 'Ethnic Minority' is not a lawful nomination category for Kenya's county assemblies.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the magistrate's election court over gazetted nominees
The magistrate's court designated by the Chief Justice has jurisdiction under Section 75(1A) of the Elections Act to determine the validity of a gazetted county assembly nominee; it cannot sit on appeal over the PPDT but may examine whether its decision was followed
Relying on the Supreme Court in Moses Mwicigi, the court held that gazetted nominees are deemed duly elected and disputes over them lie by election petition before the designated magistrate's court. The court rejected the 1st respondent's objection that the prayers required quashing the PPDT decision, noting the petitioner did not ask it to review the Tribunal's correctness.
Whether the 'Ethnic Minority' category is lawful for county assembly nominations
The category is unlawful; Article 90(2)(c) specifically exempts county assembly seats from the ethnic and regional diversity requirement, and Article 197(2) and Section 7(2) of the County Government Act speak of community and cultural diversity, not ethnicity
The court accepted that the Constitution is supreme and legislation cannot supersede it. Article 90(2)(c) excludes county assembly seats from the ethnic diversity requirement. Article 197(2)(a) and Section 7(2) of the County Government Act refer to community and cultural diversity. Nominating the 3rd respondent as 'Ethnic Minority' therefore violated the constitutional scheme.
Whether the 3rd respondent was validly nominated
She was not. She did not apply for nomination, appeared in none of the published lists, and the purported reconstituted party list was never produced; the letter forwarding it was of suspicious provenance per the document examiner
Her name was absent from the list of applicants, the shortlist and the published party list. The 2nd respondent never produced the reconstituted list ordered by the PPDT; the Raphael Tuju letter of 16/8/2017 forwarding it was challenged, Tuju disobeyed a court summons, and a document examiner found the signature was by a different author. Her name's appearance only in the final gazette was unprocedural.
Effect of non-compliance with the PPDT order
The 2nd respondent did not comply with the PPDT direction to reconstitute and submit its party list; there was no resubmitted list, so the nomination purportedly founded on the PPDT decision fails
The PPDT had ordered Jubilee to reconstitute its list to comply with Section 7(2) of the County Government Act. No reconstituted list was ever exhibited; only a forwarding letter of doubtful authenticity existed. The court found the respondents did not comply with the direction therein, so the PPDT decision afforded the 3rd respondent no valid basis for nomination.
Legal principles established
#- Article 90(2)(c) of the Constitution exempts county assembly seats from the requirement that party lists reflect regional and ethnic diversity; ethnic considerations are ruled out in county assembly nominations
- Nomination disputes must first be exhausted through the party, the IEBC and the PPDT before an election petition is filed, but the election court keeps to its mandate under Section 75(1A) and (3) of the Elections Act
- A person married into a different ethnic community cannot claim to champion the ethnic interests of her natal community in her marital county
Court orders
#- 1.A declaration that Millicent Cherotich was not validly elected/nominated as a member of the County Assembly of Nyeri County
- 2.A declaration that the nomination of Millicent Cherotich was illegal, unlawful and void and the nullification of her nomination and election as gazetted in Kenya Gazette Notice No. 4992 of 28th August 2017
- 3.The 3rd prayer (declaring the petitioner validly nominated) declined; the matter of the minority seat remitted to the 1st and 2nd respondents to either gazette the petitioner or conduct a fresh nomination
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Section 75(1A) of the Elections Act, 2011 – a question as to 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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omari Wanjiku Esha v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 4 (KLR)", Case Analysis (2018). Election Petition (Member of County Assembly Nyeri County – Ethnic Minority), Gazette Notice No. 4992 of 28th August 2017 challenged. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/4/eng@2018-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.