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MagistrateDismissedElection Petition No. 3 of 2017· [2018] KEMC 6 (KLR)

Damaris Nyarangi Mouni v Wafula W. Chebukati, Chairman IEBC & 3 others [2018] KEMC 6 (KLR)

Chief Magistrate's Court at Nyamira
28 February 2018
10,765 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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Kenya's election court confirmed IEBC can remove a nominated leader gazetted through fraud, and dismissed the ousted MCA's challenge.

What this practically means

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Executive summary

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This is a first-instance election petition decided by the Chief Magistrate's Court at Nyamira. The Petitioner, Damaris Nyarangi Mouni, was gazetted on 28th August 2017 as an ODM gender top-up nominated Member of Nyamira County Assembly and sworn in on 7th September 2017. On 8th September 2017 the IEBC published a corrigenda (Gazette Notice No. 133) deleting her name and inserting the 3rd Respondent, Irene Nyakerario Mayaka, after discovering that the Petitioner's insertion into the party list rested on a court order in Election Nomination Appeal No. 32 of 2017 which the High Court's Deputy Registrar confirmed was inauthentic. The Petitioner petitioned, seeking declarations of valid nomination, certiorari to quash the corrigenda, an injunction against swearing in the 3rd Respondent, and costs. The court found the gazettement and swearing in were not in dispute, but held that IEBC acted within its Article 88 mandate in investigating the fraudulent order and publishing the corrigenda. It found the Petitioner's name was absent from the final party list submitted on 19th July 2017 and published on 23rd July 2017, that she failed to explain the alleged fake court order, and that she did not discharge the standard of proof in the Raila Odinga presidential petition. She also failed to exhaust statutory dispute mechanisms. The court affirmed its own jurisdiction as an election court but held certiorari lay outside its province, dismissed the petition in its entirety, upheld the corrigenda, allowed the 3rd Respondent to be sworn in, and ordered each party to bear its own costs. A post-judgment application for a 14-day stay pending appeal was refused.

Key legal issues

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01

Whether IEBC may revoke a nomination after gazettement

Holding

Yes, where the gazettement was procured by fraud the Commission may investigate and publish a corrigenda

Reasoning

The Commission received complaints that the court order used to insert the Petitioner's name was fraudulent; the Deputy Registrar of the High Court confirmed no such order existed. Having established fraud, the Commission published a corrigenda to safeguard its constitutional mandate under Article 88 of the Constitution.

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02

Whether the Petitioner was validly nominated

Holding

No; she failed to discharge the burden of proof

Reasoning

The Petitioner's name did not appear on the final ODM party list submitted on 19/7/2017 and published in the newspapers of 23/7/2017; it appeared only later on the basis of an alleged court order shown to be inauthentic. She failed to explain the order, and her sponsoring party produced no evidence supporting her nomination. The required standard of proof was not met.

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03

Jurisdiction of the Chief Magistrate's Court over the election petition

Holding

The court has jurisdiction as an election court over the nomination as pleaded, but certiorari lies elsewhere

Reasoning

Relying on the National Gender and Equality Commission case, the court held that once a party-list nominee has assumed office, the nomination can only be challenged by election petition, giving the magistrates' court jurisdiction under section 74 of the Elections Act. However, quashing gazette notices is the province of the High Court, and the Petitioner also failed to exhaust statutory dispute mechanisms.

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04

Exhaustion of dispute resolution mechanisms

Holding

The Petitioner was bound to first lodge her dispute with the Political Parties Disputes Tribunal, the Disciplinary Board or the IEBC Dispute Resolution Committee

Reasoning

The court held that disputes relating to party lists must first go to the statutorily provided mechanisms under the Constitution, the Elections Act, the Elections (Party Primaries and Party List) Regulations 2017 and the Political Parties Act before an election court. The Petitioner admitted she did not lodge any such complaint, skipping a fundamental process in law.

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05

Validity of the 3rd Respondent's nomination

Holding

The 3rd Respondent proved she was validly nominated to fill the gender top up slot

Reasoning

The 3rd Respondent testified she applied for the nomination slot, her name appeared as No. 5 on the published party list (mis-spelt but with the correct ID number), and the corrigenda lawfully inserted her in place of the Petitioner. The court found she discharged the required standard of proof.

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Legal principles established

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  • IEBC may investigate complaints as to the authenticity of documents underpinning a party list and publish a corrigenda to correct a fraudulent gazettement
  • Where a person included in a party list has assumed office, the nomination can only be challenged by way of an election petition in an election court
  • A party must exhaust internal dispute resolution mechanisms (Political Parties Disputes Tribunal, Disciplinary Board or IEBC Dispute Resolution Committee) before moving an election court on party list disputes
  • No right of action can have its origin in fraud

Court orders

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  1. 1.The petition is dismissed in its entirety
  2. 2.The court upholds the Gazette Notice corrigenda (Gazette Notice No. 8879 of 8/9/2017) deleting the Petitioner and inserting Irene Nyakerario Mayaka as ODM nominee under the gender top up category
  3. 3.The 4th Respondent is at liberty to swear in the 3rd Respondent as a Nominated Member of Nyamira County Assembly
  4. 4.Each party to bear its own costs
  5. 5.Stay of the judgment for 14 days as prayed by the Petitioner is not granted
  6. 6.The issue of the release of the security of costs shall be dealt with after the expiry of the Appeal period
Jurisdiction invoked
Section 74(1) and 75(1A) of the Elections Act pursuant to Article 84(4)(e) and Article 169(1)(a) as read with (2) of the Constitution of Kenya 2010

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, "Damaris Nyarangi Mouni v Wafula W. Chebukati, Chairman IEBC & 3 others [2018] KEMC 6 (KLR)", Case Analysis (2018). Election Petition No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/6/eng@2018-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.