Damaris Nyarangi Mouni v Wafula W. Chebukati, Chairman IEBC & 3 others [2018] KEMC 6 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether IEBC may revoke a nomination after gazettement
Yes, where the gazettement was procured by fraud the Commission may investigate and publish a corrigenda
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.
Whether the Petitioner was validly nominated
No; she failed to discharge the burden of proof
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.
Jurisdiction of the Chief Magistrate's Court over the election petition
The court has jurisdiction as an election court over the nomination as pleaded, but certiorari lies elsewhere
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.
Exhaustion of dispute resolution mechanisms
The Petitioner was bound to first lodge her dispute with the Political Parties Disputes Tribunal, the Disciplinary Board or the IEBC Dispute Resolution Committee
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.
Validity of the 3rd Respondent's nomination
The 3rd Respondent proved she was validly nominated to fill the gender top up slot
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.
Legal principles established
#- 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
#- 1.The petition is dismissed in its entirety
- 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.The 4th Respondent is at liberty to swear in the 3rd Respondent as a Nominated Member of Nyamira County Assembly
- 4.Each party to bear its own costs
- 5.Stay of the judgment for 14 days as prayed by the Petitioner is not granted
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.