Almas Mohamed v Independent Electoral Boundaries Commission (IEBC) & 3 others [2018] KEMC 33 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the PPDT over an already-submitted party list
The PPDT lacked jurisdiction over the dispute involving the party list; its decision was illegal, null and void.
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.
Regularity of the IEBC's reliance on the tribunal's decision
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.
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.
Validity of the 2nd, 3rd and 4th respondents' nomination
The 2nd, 3rd and 4th respondents were not validly nominated in accordance with the law.
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.
Identity of the petitioner and her application for nomination
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.
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.
Legal principles established
#- 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
#- 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.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.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.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.Costs of the petition capped at Ksh 500,000
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.