Jane Chemutai Koskei v Independent Electoral and Boundaries Commission & another [2018] KEMC 26 (KLR)
The bottom line
#Kenya's election court ruled that IEBC and Jubilee Party had to obey a Tribunal judgment and gazette the petitioner onto Laikipia's gender top-up list.
What this practically means
#Executive summary
#Key legal issues
#Effect of an unappealed Political Parties Disputes Tribunal judgment
The Tribunal's judgment is binding and must be complied with; the Respondents' failure to appeal left it standing and their non-compliance rendered the subsequent gazettement illegal.
The court found that the Tribunal directed the 2nd Respondent to reconstitute its gender top-up list and include the Petitioner in the first slot. Both Respondents were served with the judgment and decree but neither appealed nor complied. The 1st Respondent, upon verifying the reconstituted list, should have noticed the anomaly and returned it. The gazetted list excluding the Petitioner therefore defied a valid judgment.
Jurisdiction of the Political Parties Disputes Tribunal
The 1st Respondent's argument that the Tribunal lacked jurisdiction for want of exhaustion of internal party mechanisms was rejected; an aggrieved party's remedy was appeal.
The 1st Respondent invoked section 40(1) and 40(2) of the Political Parties Act to argue the Tribunal should not have entertained the complaint without prior internal party dispute resolution. The court held the argument misplaced because the Respondents, if aggrieved by the Tribunal's judgment, should have appealed rather than collaterally attack its jurisdiction.
Alleged fatal defect in the Petition for non-joinder of nominated persons
The contention that the Petition was fatally defective did not prevail; the Petition succeeded.
The 1st Respondent argued the Petition violated the Elections (Parliamentary and County Elections) Petition Rules 2017 and Articles 25(c) and 50(1) by failing to enjoin persons nominated under the gender top-up list. The court did not accept this; it found the Respondents were served with the Tribunal's judgment, that the claim that the 1st Respondent was not privy to it did not hold water, and proceeded to allow the Petition.
Burden of proof
The uncontroverted facts established the Petitioner's case: her name was in the submitted list, omitted from the gazetted list, and the Tribunal had ordered her inclusion.
The court identified facts not contested: the Petitioner submitted her name for nomination, her name appeared in the list submitted by the 2nd Respondent, but was missing when gazetted. The Tribunal judgment ordering her inclusion in the first slot was served on both Respondents. On these facts the Petition succeeded.
Legal principles established
#- A judgment of the Political Parties Disputes Tribunal has the effect of any other judgment and must be complied with; a party aggrieved must appeal, not ignore it.
- The Election Court's jurisdiction over validity of election of a member of County Assembly is conferred by section 75(1A) of the Election Act.
Court orders
#- 1.Declaration that the publication of the Laikipia County Assembly Gender Top-up list gazetted on 28/8/2017 vide Gazette Notice Number 8350 is illegal as it goes against the orders of the Political Parties Disputes Tribunal judgment of 27th July 2017
- 2.The 1st Respondent directed to degazette the Laikipia Gender Top Up list
- 3.The 1st Respondent ordered within 45 days to gazette a new Laikipia County Assembly Gender Top-up list with the Petitioner's name included as ordered by the Political Parties Disputes Tribunal
- 4.Costs awarded to the Petitioner to be paid by both Respondents capped at Kshs.200,000
- 5.A certificate of determination in accordance with Section 86(1) of the Election Act 2011 to issue to the Independent Electoral and Boundaries Commission
- Jurisdiction invoked
- Section 75(1A) of the Election Act – 'A question as to the validity of the election of a member of the County Assembly shall be heard and determined by the Resident Magistrate's Court designated by the Chief Justice'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Chemutai Koskei v Independent Electoral and Boundaries Commission & another [2018] KEMC 26 (KLR)", Case Analysis (2018). Not stated in the judgment (Election Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/26/eng@2018-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.