Dennis Kaniaru Mathenge v Independent Electoral & Boundaries Commission & 7 others [2018] KEMC 21 (KLR)
The bottom line
#The Nanyuki court dismissed a petition challenging Laikipia County nominated MCAs, confirming that party list disputes belong at the Political Parties Disputes Tribunal, not election petitions.
What this practically means
#Executive summary
#Key legal issues
#IEBC's role in nomination of county assembly members
IEBC's role is limited to conducting and supervising elections on the basis of party lists submitted by political parties; it does not decide who appears on the lists
Articles 90 and 177 place responsibility for compiling party lists on political parties, with IEBC confirming compliance and gazetting. The petitioner was on the list at number 8 and did not challenge it at the PPDT, so he cannot fault the 1st and 2nd respondents for the 3rd respondent's acts or omissions.
Validity of the 4th-7th respondents' nomination under the minority/marginalised category
The 4th-7th respondents proved they belonged to minority communities (Borana, Yiaku, Burji, Momonyot) and were validly nominated; PWD interests were represented by an elected MCA
The petitioner did not rebut the respondents' sworn testimony that they were not Kikuyu. Nomination slots are filled in order of priority and the petitioner ranked number 8. A male PWD MCA already represented PWD interests, and marginalised groups stand on equal footing under Section 36 of the Elections Act.
Whether the 8th respondent's nomination was invalid because she was a voter in Nakuru County
The petition against the 8th respondent failed; place of voter registration does not determine residency and nullifying her nomination alone would discriminate against her
Under Section 109 of the Evidence Act the burden lay on the petitioner to prove the 8th respondent was not resident in Ngobit, Laikipia. Article 38(3) guarantees the right to register as a voter in any county. Nullifying only her nomination while others nominated in the same category were unchallenged would amount to discrimination.
Delay and acquiescence in challenging the party list
The petitioner could not challenge the 3rd respondent's list after the period for doing so had lapsed without resort to the PPDT
The petitioner confirmed he was satisfied with the list as gazetted on 23rd July 2017 and never complained to the Political Parties Disputes Tribunal. Equity aids the vigilant and bars him from challenging the decision after losing the election.
Legal principles established
#- The decision as to who gets on political party lists rests entirely with the political party, not the IEBC; disputes on party list preparation lie with the Political Parties Disputes Tribunal
- Elections on party lists are based on the number of available slots and the order of priority in the party list
- No disability is superior to another; all marginalised groups stand in equal footing
- Voter registration in a different county does not on its own make a person a non-resident of the county of nomination
Court orders
#- 1.The petition be and is hereby dismissed with costs
- 2.1st, 2nd, 4th, 5th, 6th, 7th, and 8th respondents' instruction fees capped at Kshs. 300,000.00 each
- 3.Instruction fees for the 3rd respondent capped at Kshs. 150,000.00
- 4.The costs shall be taxed and the total costs certified by the courts EO
- Jurisdiction invoked
- Elections Act, 2011 and Elections (Parliamentary and County Election) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dennis Kaniaru Mathenge v Independent Electoral & Boundaries Commission & 7 others [2018] KEMC 21 (KLR)", Case Analysis (2018). Election Petition No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/21/eng@2018-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.