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MagistrateAllowedElection Petition (Mandera) - gazette notice vol CXXIX No 124 page 4997 referenced; exact petition number not stated in judgment· [2018] KEMC 33 (KLR)

Almas Mohamed v Independent Electoral Boundaries Commission (IEBC) & 3 others [2018] KEMC 33 (KLR)

Magistrates' Court (Election Petition), Milimani
23 February 2018
6,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided three county assembly nominations, ruling the Political Parties Disputes Tribunal had no power to alter a party list already with the IEBC.

What this practically means

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Executive summary

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This first-instance election petition concerned the nomination of members of the Mandera County Assembly from party lists of the Economic Freedom Party following the 2017 general election. The petitioner, listed at number 9 on the initial party list gazetted/published on 23rd July 2017, alleged that the Political Parties Disputes Tribunal in Complaint No 528 of 2017 (Noordin Ismail v Economic Freedom Party & IEBC) nullified that list without jurisdiction, that the party then submitted an altered list dated 6th August 2017, and that the IEBC unlawfully gazetted the 2nd, 3rd and 4th respondents in her place. The IEBC maintained it merely supervised and applied the list submitted pursuant to the tribunal order without alteration; the respondents and the interested party asserted the nominations complied with Articles 90 and 177 and the Elections Act, and questioned the petitioner's identity and application. The court framed four issues and held, following Owners of Motor Vessel Lillian S and Mauray Asewe Ouko, that the PPDT lacked jurisdiction over a party list already submitted to the IEBC; its decision was therefore null and void, and the IEBC erred in implementing it. The court found the 23rd July 2017 list to be the only valid one, that the respondents were not validly nominated, that the petitioner's name discrepancy was a typographical error, and that she was a genuine applicant for nomination. The court allowed the petition, issued declarations of non-compliance and invalid nomination, ordered degazettement of the respondents and gazettement of the petitioner, and awarded costs capped at Ksh 500,000.

Key legal issues

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01

Jurisdiction of the PPDT over an already-submitted party list

Holding

The PPDT lacked jurisdiction over the dispute involving the party list; its decision was illegal, null and void.

Reasoning

Article 88(4)(e) and section 74(1) of the Elections Act vest the IEBC with jurisdiction to settle election disputes including nomination disputes, excluding election petitions and disputes subsequent to declaration of results. Once the IEBC accepted the party list, any dispute arising therefrom should have gone to the IEBC Dispute Resolution Committee, not the PPDT. Applying Owners of Motor Vessel Lillian S, the tribunal, lacking jurisdiction, could not make valid orders.

p. 6
02

Regularity of the IEBC's reliance on the tribunal's decision

Holding

The 1st respondent erred in implementing a decision that was plainly erroneous and incapable of being complied with under the constitution; the only valid list was that published on 23rd July 2017.

Reasoning

The tribunal having lacked jurisdiction, its decision was of no legal effect and provided no basis for the IEBC to accept an altered list. Relying on Re Hebatulla Properties Ltd, a tribunal's powers are express and not implied, and Article 2(4) invalidates anything inconsistent with the Constitution. The list of 23rd July 2017 was certified, vetted and published in accordance with the Elections Act.

p. 6
03

Validity of the 2nd, 3rd and 4th respondents' nomination

Holding

The 2nd, 3rd and 4th respondents were not validly nominated in accordance with the law.

Reasoning

The IEBC erred and violated the Constitution in failing to nominate and gazette the petitioner in accordance with the list submitted and published on 23rd July 2017. The subsequent list was premised on a void tribunal decision and could not ground valid nominations.

p. 6
04

Identity of the petitioner and her application for nomination

Holding

The petitioner was one and the same person as the name on the party list (topographical error) and was one of the applicants for nomination.

Reasoning

The discrepancy in the name on the party list and the ID was explained as a typographical error and missing digit; no contrary evidence was adduced. The applications for nomination were in the custody of the interested party, which failed to produce them to show the petitioner was not an applicant.

p. 6

Legal principles established

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  • Jurisdiction is everything; without it a tribunal's decisions are null and void
  • The PPDT has no jurisdiction over disputes relating to the contents of a party list already submitted to the IEBC
  • The IEBC's role in compilation of party lists is supervisory only
  • A tribunal can only do those things the statute has empowered it to do; its powers are express and not implied

Court orders

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  1. 1.Declaration that the 1st respondent's acts which were non-compliant with the constitution and written law affected the petitioner's chances of being gazetted a member of the county assembly Mandera on priority to the 2nd, 3rd and 4th respondents
  2. 2.Declaration that the 2nd, 3rd and 4th respondents were not validly elected members of the county assembly Mandera and could not be so elected on priority to the petitioner
  3. 3.Order compelling the 1st respondent to degazette the names of the 2nd, 3rd and 4th respondents from the members of the county assembly Mandera under the gazette notice and replace it with a fresh gazette in compliance with the party list submitted by the interested party, the constitution and the written law
  4. 4.Order directed at the 1st respondent compelling it to gazette the name of the petitioner as member of the county assembly Mandera on priority to the 2nd, 3rd and 4th respondents
  5. 5.Costs of the petition capped at Ksh 500,000

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(4), 88(4), 90(1)(2)(3), 97(1)(c), 98(1)(b)(c), 177(1)(a)(b)(c)(d), 177(2), 197
  • Elections ActSections 34(1), 34(6), 34(6A), 34(10), 35(1), 36, 37, 43, 74(1)
  • Election General Rules 2012Regulation 55
  • County Government ActSection 7(2)
  • Evidence ActSection 107

Cases cited (18)

  • Matiba vs The AG
    [1995-1998] 1EA 192
  • Tononoka Steel Ltd vs Eastern and Southern Africa Development Bank
    CA No 255 of 1998
  • Jubilee Party of Kenya vs Catherine Jeptoo
    Nrb Nomination Appeal No 17 of 2017
  • Jubilee Party vs Mohammed Abdikadir
    NA No 22 of 2017
  • Re Hebatulla Properties Ltd
    [1979]
  • Raila Odinga & anor vs IEBC & 2 others
    [2017] eKLR
  • Kalembe Ndile vs Patrick Musimba & 2 others
    [2013] eKLR
  • Raila Odinga & anor vs IEBC & 3 others
    Petition No 5 of 2013
  • Justus Kariuki vs Martin Nyaga Wambora
    [2014] eKLR
  • Mogesi Agnes & 8 others vs IEBC & 13 others
  • Raila Odinga & 2 others vs IEBC & 3 others
    [2013] eKLR
  • Moses Mwicigi & 14 others vs IEBC & 5 others
    [2016] eKLR
  • Isaiah Ndirangu & 2 others vs IEBC & 4 others
    [2016] eKLR
  • Narc Kenya Party & anor vs IEBC & anor
  • Jubilee Party of Kenya v Farah Mohamed Manzoor
    [2017] eKLR
  • Mauray Asewe Ouko & another v Orange Democratic Movement & another
    [2017] eKLR
  • Owners of Motor Vessel Lillian S vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Noordin Ismail vs Economic Freedom Party & IEBC
    PPDT Complaint No 528 of 2017
Jurisdiction invoked
Election petition concerning nomination to the County Assembly of Mandera under Articles 90 and 177 of the Constitution and the Elections Act

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, "Almas Mohamed v Independent Electoral Boundaries Commission (IEBC) & 3 others [2018] KEMC 33 (KLR)", Case Analysis (2018). Election Petition (Mandera) - gazette notice vol CXXIX No 124 page 4997 referenced; exact petition number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/33/eng@2018-02-23

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