Margaret Nyathogora & 5 others v I.E.B.C & 14 others [2018] KEMC 7 (KLR)
The bottom line
#An election court in Nyeri removed one Jubilee party-list nominee but kept the rest, ruling county assembly lists need community diversity, not ethnic representation.
What this practically means
#Executive summary
#Key legal issues
#Whether the magistrates' court had jurisdiction over the party-list petition
The court had jurisdiction under Section 75 of the Elections Act to determine the validity of the election/nomination of county assembly members via party lists, following the Supreme Court's decision in Moses Mwicigi
Relying on the Lillian S 'jurisdiction is everything' principle and the Supreme Court in Mwicigi, the court held the Constitution provides two modes of election - universal suffrage and party-list nomination - and contests to the latter lie by election petition, with jurisdiction conferred on the magistrates' court. The respondents' exhaustion argument was also internally contradictory since they simultaneously pleaded res judicata based on prior proceedings.
Whether ethnic minority is a valid 'special interest' ground under Articles 90, 177 and 197 and Section 7 of the County Government Act
No. The constitutional and statutory provisions require community and cultural diversity, and Article 90(2) specifically exempts county assembly nominations from ethnic considerations
The court examined Articles 197 and 177(1) and Section 7(2) of the County Government Act, all of which speak of 'community and cultural diversity' rather than ethnicity, and Article 90(2) which rules out ethnic considerations for county assembly nominations. The PPDT's reconstitution of the list on ethnic grounds was therefore legally misconceived, and the 5th respondent's inclusion to represent an 'ethnic minority' was an absurd inclusion.
Whether the 3rd to 15th respondents were validly nominated
Yes for all except the 5th respondent; the petitioners failed to discharge the stringent burden of proof on allegations of nepotism, non-membership, non-application and civil-servant nominees
The first petitioner's evidence was generalized and not credible; she admitted relying on hearsay and 'common sense' instead of proof. Only the absence of a person with disability in the list was a valid concern, and the 5th respondent's name appeared at the tail end of the process without meeting statutory requirements. The rest of the process - advertising, applications, shortlisting and publication - substantially complied with the law.
Whether residence/registration as a voter in Nyeri County was a requirement for nomination
No - the law only requires one to be a registered voter, not a voter in that particular county
Examining the Jubilee Party rules, the Elections Act, the regulations and the Constitution, the court found no requirement that a nominee be registered in the particular county; the Beatrice Waihuni Thumbi complaint therefore failed as a matter of law.
Legal principles established
#- County Assembly nominations under Article 90(2) exempt county assemblies from an ethnic-diversity requirement; the special-interest seats concern community and cultural diversity, youth and persons with disabilities
- The standard of proof in election petitions is very stringent - beyond reasonable doubt - and cannot be waived
- The definition of special interests for party lists is left open; parties and the IEBC may define them, subject to constitutional and statutory compliance
- Once gazetted, nominees to a county assembly are deemed duly elected and challenges lie by election petition before the magistrates' court under Section 75 of the Elections Act
Court orders
#- 1.Nomination of the 5th respondent, Millicent Cherotich, invalidated
- 2.The 2nd respondent directed to procedurally fill the space left by the 5th respondent, bearing in mind the constitutional requirement to have a representative of persons living with disabilities
- 3.Petition otherwise dismissed; Special Gazette Notice Vol CXIX No. 124 of 28th August 2017 not quashed in respect of the 3rd, 4th and 6th to 15th respondents
- 4.Costs awarded to all respondents, payable by the petitioners jointly
- Jurisdiction invoked
- Section 75 of the Elections Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Nyathogora & 5 others v I.E.B.C & 14 others [2018] KEMC 7 (KLR)", Case Analysis (2018). Petition concerning nomination of members to the Nyeri County Assembly (Jubilee Party party list). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/7/eng@2018-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.