In the Matter of Violation of the Non Inclusion of the persons with Disabilities in the Kisii County Assmebly [2018] KEMC 28 (KLR)
The bottom line
#Kenya's Kisii election court upheld a county assembly nominee's appointment, ruling that party lists must be taken as submitted and nominees need not be local registered voters.
What this practically means
#Executive summary
#Key legal issues
#Character of the petition - election petition or constitutional petition
The petition qualifies as an election petition because the gazetted nominee had already assumed office
The High Court had directed that since the petition challenged a county assembly party list and the members had already assumed office, it be deemed an election petition. The magistrate was gazetted as an election court, and the court confined itself to the party list nomination dispute, declining to address prayers involving constitutional interpretation reserved to the High Court under Article 165(1)(d).
Jurisdiction of the court to hear the dispute
The court had jurisdiction as an election court notwithstanding the IEBC's constitutional mandate over nomination disputes
Following the decision in Kisii CMCC Election Petition 9 of 2017 and National Gender and Equality Commission v IEBC, once the gazetted nominee had assumed office the proper forum was an election petition, not the IEBC dispute resolution mechanisms. The court therefore held it was vested with jurisdiction to hear and determine the petition.
Validity of the 4th respondent's nomination and gazettement
The nomination and gazettement complied with Article 177(1)(c), section 36(8) of the Elections Act and Regulations 54, 55 and 56
The Jubilee party list placed the 4th respondent first under the marginalized category while the petitioner was third under the youth category, so there were no competing interests between the two. The IEBC could not re-arrange the list and merely gazetted the first-priority name as required by section 36(8).
Whether the 4th respondent needed to be a registered voter in Kisii county
No such requirement exists in Article 193 or the nomination regulations
The court examined Article 193(1) of the Constitution and Regulation 15 of the Election (Party Primaries and Party Lists) Regulations 2017 and found no requirement that a nominee be a registered voter in the county of nomination; it sufficed that he was a registered voter at the time of nomination.
Late filing of the 5th respondent's response and replying affidavit
The court exercised discretion to deem the documents properly on record
The response and replying affidavit were filed after pre-trial directions. The court, invoking section 80 of the Elections Act, Rules 5(1), 11(1) and 19(1), and Article 159(2)(d) of the Constitution, enlarged time and deemed them properly filed, noting Rule 11(1) allows a response within 7 days and the rule confers discretion to enlarge time.
Legal principles established
#- Where persons included in a party list have assumed the relevant office, their nomination can only be challenged by way of an election petition, not a constitutional petition
- The IEBC has no power to re-arrange the priority order of names on a party list submitted to it
- Registration as a voter in the specific county is not a prerequisite for nomination to a county assembly
Court orders
#- 1.The petition is dismissed in its entirety
- 2.Gazette Notice No. 8380 dated 28th August 2017 is declared valid
- 3.The 4th respondent was duly nominated as a member of the county assembly of Kisii under the category of marginalized group
- 4.Each party to bear its own costs of the petition
- Jurisdiction invoked
- Constituted as an election court by Gazette Notice No. 12539 dated 19th December 2017 pursuant to an order of the High Court deeming the petition an election petition; jurisdiction under the Constitution and the Elections Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In the Matter of Violation of the Non Inclusion of the persons with Disabilities in the Kisii County Assmebly [2018] KEMC 28 (KLR)", Case Analysis (2018). Election Petition No. 6 of 2017 (originally Constitutional Petition No. 6 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/28/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.