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MagistratePartially AllowedElection Petition filed 25th September 2017, Garissa· [2018] KEMC 20 (KLR)

Hamdi Ahmed Ali v Victoria Cheruto Limo & 2 others [2018] KEMC 20 (KLR)

Magistrates' Court at Garissa (Election Petition)
6 March 2018
JMJ. J. Masiga
5,100 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court nullified a woman's nomination to the Garissa County Assembly because she wasn't local, ordering the party to nominate someone fresh.

What this practically means

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Executive summary

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This is a first-instance election petition challenging the nomination of the 1st Respondent to the Garissa County Assembly as the Kenya Patriot's Party gender special seat (gender top-up) nominee, gazetted via Gazette Notice No 8752 of 6th September 2017. The Petitioner, a Garissa-born member of the party, alleged that the party's initial list placed her first, that the 1st Respondent - a party employee - fraudulently caused her own name to be uploaded first into the IEBC's CRMS system, and that the 2nd Respondent failed to act on the party's complaints or to verify nominees' qualifications under Regulation 54(5). The 1st Respondent denied the fraud, explaining the list order by priority of applications received, and argued the Petitioner failed to prove allegations to the standard required of electoral offences and that the party was an indispensable party. The IEBC maintained it was bound to gazette the first name on the list submitted by the party and had no power to alter party lists. After reviewing the evidence and submissions, the court found the decisive issue was who between the two could represent the women of Garissa. It held that Article 90(2)(c) recognises the peculiarities of counties and that section 7 of the County Assembly Act and the County Governments Act require the community and cultural diversity of the county to be reflected; the 1st Respondent, a registered voter in Uasin Gishu unable to demonstrate familiarity with Garissa, could not do so. The petition was allowed: the nomination and gazettement were nullified, the party was directed to conduct a fresh nomination within 45 days, costs were capped at Kshs 500,000 shared equally between the Respondents, and the Interested Party got no costs.

Key legal issues

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01

Representativeness and residence of a gender top-up nominee

Holding

A nominee unfamiliar with and not resident in the county cannot adequately represent the interests of the women of that county; the 1st Respondent's nomination offended Article 90(2)(c) and section 7 of the County Governments Act

Reasoning

The court found the Petitioner was born and brought up in Garissa and familiar with its culture, religion, needs and interests, while the 1st Respondent was a registered voter in Uasin Gishu and could not identify the outgoing Governor of Garissa. The court held that Article 90(2)(c) recognises the peculiarity of counties and that section 7 of the County Assembly Act requires the community and cultural diversity of the county to be reflected in the County Assembly.

p. 5
02

Alleged fraud and collusion in altering the party list

Holding

Not decided on the fraud allegation; the nomination was nullified instead on representativeness grounds

Reasoning

The Petitioner alleged the 1st Respondent fraudulently uploaded her name into the CRMS system and colluded with the IEBC. The 1st Respondent's witnesses testified she was on leave, that only the Chairman and the Finance Director held the CRMS password, and that her application was received first. The court did not make an express finding of fraud, resting its decision on the residence/representativeness issue.

p. 5

Legal principles established

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  • Ethnicity and county peculiarities cannot be casually wished away in nominations to County Assemblies; party lists for county assemblies must reflect the community and cultural diversity of the county
  • The IEBC's failure to consider the community and cultural diversity of a county before gazetting a gender top-up nominee contravenes Article 90(2)(c) of the Constitution and section 7 of the County Governments Act

Court orders

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  1. 1.The nomination of the 1st Respondent as member of the County Assembly of Garissa under the category of special seats (Gender Top-Up) is nullified
  2. 2.The Gazettement of the 1st Respondent vide Kenya Gazette Notice No 8752 of 6th September 2017 is nullified
  3. 3.Kenya Patriot's Party is directed to carry out fresh nomination within forty five (45) days from the date of the judgment and forward the list to the 2nd Respondent for gazettement
  4. 4.Costs are capped at Kshs 500,000/= to be shared equally between the Respondents
  5. 5.The Interested Party shall not be entitled to any costs
Jurisdiction invoked
Original election petition jurisdiction over nomination to the County Assembly under Article 177(1)(b) of the Constitution, the Election Act 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, "Hamdi Ahmed Ali v Victoria Cheruto Limo & 2 others [2018] KEMC 20 (KLR)", Case Analysis (2018). Election Petition filed 25th September 2017, Garissa. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/20/eng@2018-03-06

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