Elizabeth Jebet Kibor v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 65 (KLR)
The bottom line
#The Kajiado Election Court upheld Sandra Mario's ODM party-list nomination, ruling the challenger failed to prove her case and paying costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrate's Court over challenges to party-list nominations
The court, designated by gazette notice, was properly seized of the petition since the 3rd Respondent had been gazetted as a member of the County Assembly
Section 75(A) of the Elections Act vests jurisdiction over questions of validity of election of County Assembly members in Resident Magistrate's Courts designated by the Chief Justice. The Chief Justice gazetted this court on 6/11/2017. Following Rosemary Njeri Nyambua and Rose Moturi Mnene, once a gazetted person has assumed office, the nomination can only be challenged by election petition.
Party membership of the 3rd Respondent at the time of submission of the party list
The 3rd Respondent was a member of ODM at the material time, evidenced by a life membership receipt dated 2/1/2017 and a life membership certificate
Section 34(8) of the Elections Act requires nominees to be party members on the date of submission of the party list. The 3rd Respondent produced an official receipt dated 2/1/2017 for Ksh.20,000 life membership and a life membership certificate, which the court found proved membership before both the list submission and the gazettement on 28/8/2017, notwithstanding contrary letters from the Registrar of Political Parties and ODM's Legal Officer.
Effect of the IEBC Dispute Resolution Committee decision in Daniel K. Osoi v ODM and IEBC
The dispute resolution decision was valid, has bearing on the petition, and cannot be overturned by this court other than by appeal
Article 88(4) of the Constitution and section 74 of the Elections Act empower IEBC to settle nomination disputes. The Osoi dispute led to a consent under which ODM submitted a fresh list placing the 3rd Respondent first in the special interest category. The court, relying on Moses Mucigi, held IEBC cannot direct parties on preparing lists, and that the settled dispute cannot be collaterally challenged before it.
Burden of proof in the election petition
The Petitioner failed to discharge the burden of proving electoral misconduct or irregularity
Applying Joho v Nyange and Raila Odinga, the petitioner bears the burden of proving non-conformity with electoral law by cogent, credible and consistent evidence and that it affected the election's validity. The documentary and affidavit evidence, including the disputed membership letters unaccompanied by the actual documents, did not discharge this burden.
Ethnicity as a criterion for County Assembly party-list nomination
Article 90(2)(c) on regional and ethnic diversity expressly excludes County Assembly seats, though fair and equal selection of special interest nominees is required
The court reproduced Article 90 and noted its paragraph (c) excludes County Assembly seats from the regional and ethnic diversity requirement. Relying on Rose Wairimu Kamau and the CIC decision, the court held that selection from women, youth and persons with disabilities at county level should be fair and equal; the 3rd Respondent's mixed Kikuyu-Italian parentage did not disqualify her.
Legal principles established
#- A nominee must be a member of the political party on the date of submission of the party list
- The burden of proving electoral misconduct lies squarely on the petitioner, who must prove allegations by cogent, credible and consistent evidence
- Once a person has been gazetted as a member of a County Assembly, the nomination can only be challenged by way of an election petition under section 75 of the Elections Act
- IEBC is responsible for settlement of electoral disputes arising from nominations but cannot direct political parties on how to prepare party lists, and such decisions can only be challenged on appeal
- Regional and ethnic diversity under Article 90(2)(c) does not apply to County Assembly seats, but ethnicity remains a consideration; nomination should be fair and equal
Court orders
#- 1.The petition is dismissed with costs to the 1st and 3rd Respondents
- 2.30 days right of appeal granted to the Petitioner to file an appeal
- Jurisdiction invoked
- Section 75(A) of the Elections Act; gazette notice Vol. XIX No. 147 dated 6/11/2017 designating the court to hear the election petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Jebet Kibor v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 65 (KLR)", Case Analysis (2018). Election Petition No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/65/eng@2018-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.