Hellenah Kisiku Kitheka v Independent Electoral & Boundaries Commission [2018] KEMC 76 (KLR)
The bottom line
#A Kenyan court dismissed a challenge to ODM's party list, holding the IEBC did not alter it and unproven claims fail in election petitions.
What this practically means
#Executive summary
#Key legal issues
#Whether IEBC altered ODM's final gender top-up list so as to omit the petitioner
The court found no alteration; the list produced by IEBC showed the petitioner at position 51 and the gazetted nominees followed the party's order of priority.
The petitioner relied on an uncertified list and a complaint ruling that was never produced in court, and did not join her party to confirm which list was forwarded. The court held IEBC, as custodian of party lists, was best placed to produce the accurate list and found its version most reliable, placing the petitioner at position 51, outside the 26 positions filled.
Whether the gazette notice published on 28th August 2017 violated IEBC's constitutional and statutory mandate
No violation; IEBC discharged its mandate in accordance with the Constitution and the Elections Act.
Under Article 90(2), section 34(6)(A) of the Elections Act and Regulation 21(2) of the 2017 party primaries and party list regulations, IEBC reviews party lists for compliance. Section 36(7) requires drawing special seats in the order given by the party. The court found the gazetted nominees followed the party's final list order, up to position 26, with no alteration.
Whether the petitioner's evidence met the threshold of proof for an election petition
It did not; the petition was dismissed.
Applying the Raila Odinga standard that proof in election petitions must be above the balance of probability though below beyond reasonable doubt, the court held the petitioner's documentary evidence was uncertified, the complaint ruling was not produced, and the ODM protest letter came after gazettement and outside statutory timelines.
Legal principles established
#- The IEBC's mandate on party lists is to review a list submitted by a political party for compliance with the law and, where it does not comply, to require amendment or reject it; if not returned, the list is deemed valid and nominees are taken in order of priority.
- The standard of proof in election petitions is above the balance of probability though not as high as beyond reasonable doubt.
- The respondent, as custodian of party lists, is best placed to produce the accurate list, and where the petitioner's documents are uncertified and the party is not joined to confirm the final list, the IEBC's list prevails.
Court orders
#- 1.The petition is dismissed with costs to the respondent.
- 2.Costs not to exceed Kshs. 200,000/= (two hundred thousand shillings only).
- 3.Leave to appeal is allowed; copies of judgment and proceedings to be supplied upon payment of requisite fee; security to be treated as part of the costs.
- Jurisdiction invoked
- Election petition under the Constitution (Articles 88(4)(e), 90, 177(1)(b)) and the Elections Act, being a first-instance election petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellenah Kisiku Kitheka v Independent Electoral & Boundaries Commission [2018] KEMC 76 (KLR)", Case Analysis (2018). Election Petition No 22 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/76/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.