John Nduati v Independent Electoral and Boundaries Commission [2018] KEMC 49 (KLR)
The bottom line
#Kenya's High Court nullified IEBC-gazetted county assembly nominees who weren't registered voters, showing election watchdogs can enforce nomination rules.
What this practically means
#Executive summary
#Key legal issues
#Whether the gazetted nominees were qualified for nomination to the Nairobi County Assembly
The gazetted list contained persons not qualified: two nominees (Joyce Muthoni Kamau and Kariuki Wanjiru) were not identified in the register of voters, and two others were registered in other counties (Nakuru and Kajiado).
The IEBC itself, through a letter written by its Secretary/CEO Ezra Chiloba dated 26th September 2017, confirmed that particulars of two nominees could not be found and that two others were registered in Nakuru and Kajiado Counties. The Respondent did not dispute that letter nor respond to that issue in submissions. The court therefore found the Respondent failed to adhere to the Elections Act on qualification and was negligent in gazetting unqualified nominees.
Whether the Respondent violated the Constitution and the Elections Act in the nomination process
The Respondent was outrightly negligent and infringed the Constitution by gazetting as bona fide nominees persons it had itself stated were not identified in the voters' register.
The IEBC is mandated under Article 90(2) of the Constitution to supervise nominations and must ensure compliance with constitutional and statutory guidelines for party-list nominations. Having admitted that two nominees could not be identified as registered voters yet gazetting them, and offering no evidence or explanation for the omission of the Petitioner's name, the process was flawed from the outset, void ab initio, and went to the core of the petition rather than being a mere technicality.
Effect of the Respondent's failure to call its deponent, Salome Oyugi
The Respondent's adoption of Salome Oyugi's affidavit without calling her to give viva voce evidence was of no evidential value.
The Respondent relied entirely on the Replying Affidavit of Salome Oyugi but never called her as a witness, nor intimated at pre-trial that it would adopt her affidavit. Citing Buhari v Obasanjo on the burden of proof, the court held that a party which asserts must prove by adducing credible evidence; no explanation was given for why the Petitioner's name was missing from the lists, and untested affidavit evidence could not discharge the Respondent's burden.
Whether the Petitioner proved his petition to the required standard
The Petitioner, a bona fide registered voter and member of Jubilee Party, discharged the legal and evidential burden and proved his case.
Applying the Raila (2013) principle on shifting burdens, the court found the Petitioner's evidence unshaken. The IEBC's own letter confirmed the disqualifying facts, which were undisputed. On the totality of the findings, the petition succeeded and was allowed, warranting nullification of the gazetted list and inclusion of the Petitioner as a nominee.
Legal principles established
#- An election cause is established like a civil cause; the legal burden rests on the petitioner but the evidential burden shifts depending on the effectiveness with which it is discharged.
- A body mandated to supervise party-list nominations must ensure compliance with constitutional and statutory requirements for qualification of nominees.
- Gazettement of persons whose particulars could not be found in the voters' register renders the nomination process void ab initio and is not a curable technicality.
Court orders
#- 1.Nullification of the list of nominees gazetted on 28th August 2017
- 2.The Petitioner's name to be included as a nominee to the Nairobi County Assembly
- 3.Costs awarded to the Petitioner, with instruction fees capped at Kshs. 100,000
- 4.A certificate of determination in accordance with Section 86(1) of the Elections Act 2011 to issue to the IEBC
- Jurisdiction invoked
- Article 88(4)(e) of the Constitution of Kenya 2010 read with Section 74 of the Elections Act 2011 and Regulation 99(2) of the Elections (General) Regulations 2012 (election court jurisdiction over nomination disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Nduati v Independent Electoral and Boundaries Commission [2018] KEMC 49 (KLR)", Case Analysis (2018). Election Petition (not expressly numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/49/eng@2018-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.