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MagistrateDismissedElection Petition (Kisii) - 2017· [2018] KEMC 13 (KLR)

Esther Okenyuri Anyieni v Mokumi Edmond Anthony & 3 others [2018] KEMC 13 (KLR)

Magistrates' Court (sitting as an Election Court), Kisii
25 January 2018
VKV. Karanja
3,560 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kisii election court upheld a nominated MCA's election, ruling Kenyan law does not require party-list nominees to be registered voters in the county they represent.

What this practically means

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Executive summary

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The Petitioner, a Jubilee Party member ranked second on the party's list for nominated seats in Kisii County Assembly (youth category), petitioned for declarations that the 1st Respondent, ranked first under the marginalized category, was ineligible for nomination because he was registered as a voter in Ruaraka Constituency, Nairobi, and not in Kisii County. She sought his degazettement, her own gazettement as the duly nominated member, and costs. The 1st and 3rd Respondents filed replying affidavits rather than formal responses; the Petitioner argued the Petition was thereby uncontested. The court, invoking Article 159(2)(d) and the overriding objective of the Elections (Parliamentary and County Elections) Petition Rules 2017, and relying on Raila Odinga v IEBC and Kisii Election Petition No. 4 of 2017, deemed the affidavits regular responses under Rule 11(2). On jurisdiction, the court held that since the 1st Respondent had been gazetted and had assumed office, an election petition - not the Political Parties Tribunal - was the proper avenue, per National Gender and Equality Commission v IEBC. On the merits, the court held that neither Article 193 of the Constitution nor Regulation 15 of the Elections (Party Primaries and Party Lists) Regulations 2017 requires a nominee to be a registered voter in the place of nomination; registration as a voter suffices, and the Jubilee nomination form could not supersede the Constitution and written law. The IEBC gazetted the nominees in the order submitted, per Section 36(8) of the Elections Act. The Petition was dismissed, Gazette Notice No. 8380 upheld, and each party ordered to bear its own costs.

Key legal issues

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01

Whether replying affidavits filed in place of formal responses render the Petition uncontested

Holding

The replying affidavits are deemed regular and treated as responses under Rule 11(2)

Reasoning

Rule 12(5) requires a response to be supported by an affidavit. Although the 1st and 3rd Respondents filed replying affidavits rather than responses, the affidavits answered all issues raised in the Petition. Relying on Kisii High Court Election Petition No. 4 of 2017 and Raila Odinga v IEBC, the court invoked Article 159(2)(d) and Rules 1, 2 and 5(1) to do substantive justice rather than allow procedure to trump merit.

p. 4
02

Whether failure to lodge a prior complaint under Sections 40 and 41 of the Political Parties Act ousts the court's jurisdiction

Holding

The Petitioner is in the right forum; the election court has jurisdiction

Reasoning

Article 88(4)(e) confers on the court jurisdiction over nomination disputes. Since the 1st Respondent had been gazetted on 28th August 2017 and had assumed office, an election petition was the only avenue open to the Petitioner, consistent with National Gender and Equality Commission v IEBC. Failure to lodge an earlier complaint did not nullify the Petition.

p. 4
03

Whether the 1st Respondent's nomination satisfied constitutional and statutory requirements despite being registered as a voter outside Kisii County

Holding

The nomination was valid; neither Article 193 nor Regulation 15 requires registration as a voter in the place of nomination

Reasoning

The only legal requirement is registration as a voter anywhere, which the 1st Respondent met (Bonchari Constituency, Kisii County as per his evidence; the Jubilee form's residency clause cannot supersede the Constitution and written law). The IEBC did not rearrange the party list and gazetted nominees per Section 36(8). The Petitioner and 1st Respondent applied for different special seats, so she could not take his slot.

p. 5
04

Whether the reliefs sought should be granted

Holding

Reliefs fail; the Petition is dismissed

Reasoning

Having held that the 1st Respondent was properly nominated and that the IEBC discharged its mandate under Article 90, Article 177, Section 36(8) of the Elections Act and Regulations 54, 55 and 56 of the Elections (General) Regulations 2012, the court dismissed the Petition, upheld Gazette Notice No. 8380 and directed each party to bear its own costs.

p. 6

Legal principles established

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  • A replying affidavit filed instead of a formal response to an election petition may be treated as a response in the interest of substantive justice under Articles 159(2)(d) and the overriding objective of the Petition Rules
  • Where persons included in a party list have assumed office, their nomination can only be challenged by way of an election petition
  • There is no legal requirement that a person nominated to a County Assembly party list must be registered as a voter in the county or place of nomination; registration as a voter anywhere suffices, and a party's nomination form cannot supersede the Constitution and written law

Court orders

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  1. 1.The replying affidavits by the 1st and 3rd Respondents are deemed regular and treated as responses under Rule 11(2) of the Election Petition Rules
  2. 2.The Petition is dismissed
  3. 3.Gazette Notice No. 8380 is declared valid and the 1st Respondent is duly nominated as Member of County Assembly Kisii County under the marginalized group
  4. 4.Each party to bear its own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 90
  • Constitution of Kenya, 2010Article 88(4)(d) and (e)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 177(1)(b) and (c)
  • Constitution of Kenya, 2010Article 193(1)
  • Elections Act, 2011Sections 27(1), 34(6), 34(6A), 35, 36(1)(f), 36(6), 36(7), 36(8), 74
  • Elections (General) Regulations, 2012Regulations 54, 55(1)(2), 56(2)
  • Elections (Party Primaries and Party Lists) Regulations, 2017Regulations 2, 15(1), 26
  • Political Parties Act, Cap 7BSections 40(1)(b), 40(1), 41
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rules 1, 2, 5(1), 11(1), 11(2), 12(5), 13(1), 13(9), 14, 32(1)

Cases cited (5)

  • Moses Mwicigi & 14 Others –vs- IEBC & 5 Others
    [2016] eKLR
  • Raila Odinga & Others –vs- IEBC and 3 Others
    [2017] eKLR
  • Lydia Mathia –vs- Naisula Lesuuda & Another
    [2013] eKLR
  • National Gender and Equality Commission –vs- IEBC & Another
    [2013] eKLR
  • Kisii High Court Election Petition No. 4 of 2017 (per Hon. Justice Ndungu A.)
Jurisdiction invoked
Article 88(4)(e) of the Constitution - settlement of electoral disputes including disputes relating to or arising from nominations, read with the Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2017

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, "Esther Okenyuri Anyieni v Mokumi Edmond Anthony & 3 others [2018] KEMC 13 (KLR)", Case Analysis (2018). Election Petition (Kisii) - 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/13/eng@2018-01-25

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