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MagistratePartially AllowedNot stated in the judgment as provided· [2018] KEMC 46 (KLR)

Lucas Mulinge Wambua v Independent Electoral & Boundaries Commission (I.E.B.C) & 3 others [2018] KEMC 46 (KLR)

Magistrates' Court (Election Petition)
14 February 2018
JMJames N. Mwaniki
5,884 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 nullified two Makueni County Assembly nominations because Wiper's party list ignored the required zebra alternation formula among marginalized groups.

What this practically means

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Executive summary

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The petitioner, a member of Wiper Democratic Movement-Kenya, challenged the nomination and gazettement of Justus Mutua Masesi as a nominated member of the Makueni County Assembly, contending that the marginalized-group party list re-submitted after a Political Parties Dispute Tribunal decision unlawfully prioritised three youth nominees over persons with disability, marginalized women and marginalized clans, contrary to section 34(3) of the Elections Act, and sought his own gazettement. The IEBC maintained it merely adopted the list as submitted, while the 3rd respondent and the party argued prioritisation was the party's prerogative. The court held that the PPDT decision of 1st August 2017 nullified both the marginalized and gender top-up lists, and that the party substantially complied by re-submitting both. On the merits, the court found that although compiling and prioritising party lists is the party's prerogative, the law requires the alternate (zebra) formula among the categories within the marginalized group, and the IEBC was obliged to ensure compliance and reject non-compliant lists. The list was a mere irregularity, not a nullity, so the first-named nominee (Urbanus Kyalo Wambua) stood, but the nominations of Justus Mutua Masesi and Lynett Mbula Mutula were declared unconstitutional, unlawful and invalid. Sophia Mutio Mutua and Gideon Muinde Mwango were declared entitled to gazettement. The petitioner, ranked seventh on the corrected list, was not entitled to nomination. Costs were awarded to the petitioner against the IEBC and the interested party jointly and severally, capped at Kshs 200,000/=. Certificates under section 86(1) of the Elections Act were ordered issued.

Key legal issues

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01

Legal effect of the PPDT decision in Complaint No. 512 of 2017

Holding

The tribunal nullified the interested party's list on both the Marginalized and Gender Top-up categories, and the interested party substantially complied by re-submitting lists on both categories

Reasoning

The tribunal's judgment scrutinised both the marginalized list and the gender top-up list, criticising the exclusive composition of both. The interested party's executive director (DW3) confirmed his understanding was that both lists were nullified, which is why the party re-submitted lists on both categories.

p. 4
02

Whether the re-submitted marginalized group list and the resultant nominations complied with the Constitution and electoral law

Holding

The list breached the alternate (zebra) formula required under section 34(3) of the Elections Act by prioritising three youth nominees over other marginalized categories; the nomination of the 3rd respondent (and Lynett Mbula Mutula) was unlawful, and the IEBC failed in its duty to reject the list

Reasoning

While parties have the prerogative to draw and prioritise their lists, the law dictates fairness, equity and non-discrimination; the marginalized list must alternate among categories. The interested party biased the list in favour of the youth, and the IEBC failed to reject it or direct re-submission. Only the first nominee on the list, Urbanus Kyalo Wambua, could stand.

p. 8
03

Whether the petitioner was entitled to be gazetted as a nominated MCA

Holding

No. Applying the alternate formula, the three seats belonged to Urbanus Kyalo Wambua (first on the list), Sophia Mutio Mutua (marginalized women) and Gideon Muinde Mwango (person with disability), placing the petitioner out of the running

Reasoning

Entitlement depended on the petitioner's position on a properly ordered list and the qualification of those ahead of him. The first nominee stands irrespective of category; the next in line were Sophia Mutio Mutua and then Gideon Muinde Mwango, exhausting the three available special seats.

p. 10

Legal principles established

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  • In an election petition, the burden of proving allegations of non-conformity with electoral law, and that such non-compliance affected the validity of the election, rests on the petitioner
  • The IEBC is obliged, in accepting party lists, to ensure compliance with the Constitution, the Elections Act and the regulations, including the alternate (zebra) formula among categories in the marginalized group list
  • A party list that fails to alternate among the marginalized categories is a mere irregularity, voidable rather than a nullity

Court orders

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  1. 1.Declared that the legal effect of the PPDT decision of 1st August 2017 in Complaint No. 512 of 2017 was that it nullified the interested party's list of nominees on both the Marginalized and Gender Top categories, and that it was substantially complied with by the Interested Party
  2. 2.Declared that the petitioner's name was lawfully forwarded to the 1st respondent as part of the party list of the interested party
  3. 3.Declared the election and nomination of Justus Mutua Masesi and Lynett Mbula Mutula as Members of County Assembly of Makueni unconstitutional, unlawful and invalid, and nullified the said nominations/elections
  4. 4.Declared that SOPHIA MUTIO MUTUA and Gideon MUINDE MWANGO are entitled to be gazetted as duly nominated/elected members of the County Assembly of Makueni
  5. 5.Ordered certificates under section 86(1) of the Elections Act to issue in terms of orders 3 and 4 and be served on the IEBC and the Clerk to the County Assembly of Makueni
  6. 6.Ordered the IEBC, upon service of the certificates, to comply with order 4
  7. 7.Declared the petitioner, Lucas Mulinge Wambua, not entitled to be gazetted as a duly nominated member of the County Assembly of Makueni
  8. 8.Awarded costs to the petitioner, payable by the IEBC and the interested party jointly and severally, capped at Kshs 200,000/=; refund of the sum deposited in court by the petitioner

Authorities

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Legislation

  • Constitution of KenyaArticle 90
  • Constitution of KenyaArticle 100
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 177(1)(c)
  • Constitution of KenyaArticle 3(1)
  • Elections ActSection 34(3)
  • Elections ActSection 34(7)
  • Elections ActSection 36(2)
  • Elections ActSection 37
  • Elections ActSection 86(1)
  • Elections (General) Regulations 2012Regulation 56(9)(2) [cited in judgment as 569(2)]
  • Elections (General) Regulations 2012Regulation 55(2)
  • The Elections (Parliamentary and County Elections) Petition Rules 2012Rule 34(1)(a)

Cases cited (7)

  • Raila Odinga and others Vs Independent Electoral and Boundaries Commission & Others
    [2013] eKLR
  • MBOWE vs. ELIUFOO
    (1967) EA 240
  • Abubakar v. Yar'Adua
    [2009] All FWLR (Pt. 457) 1 S.C.
  • Lydia Mathia v Naisula Lesuuda & another
    [2013] eKLR
  • Lydiah Nyaguthii Githendu –vs- The IEBC & 7 Others
    [2015] eKLR
  • Suleiman Said Shabhal –Vs- IEBC & 3 others
    [2014] eKLR
  • Mac Foy –Vs- United Africa Co. Limited
    [1961] 3 ALL ER 1169
Jurisdiction invoked
Election petition in respect of nomination to the County Assembly of Makueni under the Constitution and the Elections Act (Elections (Parliamentary and County Elections) Petition Rules 2012, Rule 34(1)(a) invoked on costs)

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, "Lucas Mulinge Wambua v Independent Electoral & Boundaries Commission (I.E.B.C) & 3 others [2018] KEMC 46 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/46/eng@2018-02-14

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