Mohamed Abass Sheikh v Boundaries Commission (IEBC) & 2 others [2018] KEMC 51 (KLR)
The bottom line
#Kenya's courts will not hear party-list nomination disputes unless you first exhaust the IEBC and Political Parties Disputes Tribunal processes.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrates' Court over disputes arising from Party List nominations to a County Assembly
The court lacks jurisdiction; such disputes belong to the IEBC's dispute mechanisms and the PPDT, with appeals lying to the High Court
Section 74(1) of the Elections Act and Section 4 of the IEBC Act vest responsibility for nomination disputes in the Commission, while Section 40 of the Political Parties Act vests party-related nomination disputes in the PPDT, with appeals to the High Court under Section 41(2). The Petitioner had already litigated substantially the same complaint at the PPDT without appeal, and the Court cannot entertain what is in substance an appeal disguised as a constitutional petition.
Res judicata and non-disclosure of prior PPDT proceedings
The Petitioner covertly re-litigated a PPDT complaint dismissed for want of evidence, without disclosing it; the Petition is barred by res judicata
The Petitioner had sought at the PPDT (Case No. 499 of 2017) to have his name moved from position 8 to position 1 on the Jubilee Party list. The Tribunal dismissed the claim for lack of evidence and he did not appeal. He failed to disclose these proceedings to this Court, disclosing them only under cross-examination, and admitted the non-disclosure was material.
Legal principles established
#- Party List nomination disputes must first be taken to the IEBC's dispute resolution mechanisms and the Political Parties Disputes Tribunal; Articles 165 and 258 do not substitute those statutory mechanisms
- The IEBC cannot re-arrange or disregard a political party's preferred order of candidates in a party list
- It is the political party, not the courts or IEBC, that determines which of its members appear on a party list, in which category and in what order
Court orders
#- 1.Dismissal of the Petition
- 2.Petitioner condemned to pay costs to the Respondents
- Jurisdiction invoked
- Articles 165, 258 and 87 of the Constitution; Elections Act; Political Parties Act - jurisdiction contested, court held it lacked jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Abass Sheikh v Boundaries Commission (IEBC) & 2 others [2018] KEMC 51 (KLR)", Case Analysis (2018). Petition dated 13th September 2018 (as stated in judgment; record shows dates of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/51/eng@2018-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.