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MagistrateOtherElection Petition (as filed 18th September 2017; number not stated in judgment)· [2018] KEMC 36 (KLR)

Rose Moturi Mwene v Independent Electoral and Boundaries Commission & 3 others [2018] KEMC 36 (KLR)

Resident Magistrate's Court (Election Petition), Kisii
12 February 2018
4,516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled both women's nominations to the Kisii County Assembly were invalid due to a party list error, ordering fresh nominations instead of reinstating either.

What this practically means

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Executive summary

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Rose Moturi Mwene petitioned against a Corrigenda in the Kenya Gazette (Vol. CXIX No. 132 of 8th September 2017) that deleted her name as a gender top-up nominated Member of Kisii County Assembly and substituted Harriet Kerubo Ongera, after she had been gazetted, sworn in on 7th September 2017 and issued a certificate. Her nomination had arisen because Jubilee Party's list erroneously recorded the 3rd Respondent as 'male'; the IEBC, applying the alternation principle in Section 36(2) of the Elections Act, skipped her (position 2) and picked the Petitioner (position 11). After the party corrected the error by letter of 31st July 2017, the IEBC published the Corrigenda restoring the 3rd Respondent. The court framed four issues: qualification of both women, the party's mandate to amend its list after the Petitioner assumed office, whether the IEBC exceeded its mandate in publishing the Corrigenda, and the reliefs. Applying Section 34(10) of the Elections Act, which bars amendment of a party list during the term, and the priority principle in Imelda Nafula Wanjala v IEBC, the court held both respondents acted unlawfully: the error was the party's, and the Corrigenda came too late after the Petitioner had assumed office. However, upholding the Petitioner's own nomination was equally impossible since she ranked 11th and would not have been nominated had the gender been correctly recorded. The court declared both nomination processes null and void, revoked Gazette Notices 8380 and 8847, ordered fresh nominations by the IEBC and Jubilee Party, and directed each party to bear its own costs. The Petitioner's prayers for reinstatement were refused.

Key legal issues

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01

Whether the Petitioner and 3rd Respondent qualified for nomination under the gender top up list

Holding

Both qualified by virtue of nomination by their political party, being members submitted under Regulation 54 and covered by Article 193(1)(c)(i)

Reasoning

The process of nomination is governed by Sections 34-37 of the Elections Act, Articles 177 and 90 of the Constitution and Regulations 54-56. Both parties forwarded names in line with Regulation 54; the Commission did not reject them and published the final list under Regulation 54(8), the Petitioner at position 11 and the 3rd Respondent at position 2.

p. 7
02

Whether the 2nd Respondent could amend its party list and the 1st Respondent publish a Corrigenda after the Petitioner had been sworn into office

Holding

Both respondents acted unlawfully; Section 34(10) prohibits amendment of a party list during the term, and the Corrigenda deleting the sworn-in Petitioner was irregular

Reasoning

The gender error was the 2nd Respondent's mistake, not attributable to the Petitioner or 3rd Respondent. The Commission had applied the alternate principle under Section 36(2) when it selected the Petitioner. Correcting the anomaly by Corrigenda after the Petitioner had assumed office came too late and breached Section 34(10). The proper remedy was a fresh nomination.

p. 8
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What relief follows from the nullity of both nominations

Holding

Both nominations declared null and void, both Gazette Notices revoked, and fresh nominations ordered; the Petitioner cannot be reinstated

Reasoning

Had the 3rd Respondent's gender been correctly recorded as female, the Petitioner ranked 11th would not have been nominated against the 3rd Respondent at position 2 under the alternation principle in Section 36(2). Upholding either gazette notice would perpetuate illegality, so both are set aside and a fresh nomination directed.

p. 9

Legal principles established

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  • A party list submitted for purposes of special seat nominations shall not be amended during the term of Parliament or County Assembly for which the candidates are elected
  • Nomination from a party list must follow the order of priority in the list submitted, and a failure to do so is irregular and unlawful
  • Where a party list contains a fundamental defect such as a gender error that alters the order of priority, the remedy is a fresh nomination, not a Corrigenda after the nominee has assumed office

Court orders

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  1. 1.The nomination process in relation to the Petitioner and the 3rd Respondent is declared null and void
  2. 2.Gazette Notice No. 8380 in relation to the Petitioner's nomination and Gazette Notice No. 8847 in relation to the 3rd Respondent's nomination are revoked
  3. 3.The 1st and 2nd Respondents to conduct a fresh nomination for the Gender Top Up List to fill the vacancy, strictly complying with Articles 177 and 90 of the Constitution, Sections 34, 35, 36 and 37 of the Elections Act and Regulations 54, 55 and 56 of the Elections (General) Regulations 2012
  4. 4.Each party to bear their own costs of the Petition
Jurisdiction invoked
Elections (Parliamentary and County Election Petitions) Rules 2017; Article 88(4)(e) of the Constitution (exclusion of election petitions from other forums)

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, "Rose Moturi Mwene v Independent Electoral and Boundaries Commission & 3 others [2018] KEMC 36 (KLR)", Case Analysis (2018). Election Petition (as filed 18th September 2017; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/36/eng@2018-02-12

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