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MagistratePartially AllowedElection Petition dated 25th September, 2017· [2018] KEMC 79 (KLR)

Hamida Yaroi Shek Nuri v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 79 (KLR)

Magistrates' Court (Election Petition)
19 January 2018
2,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court-standard for magistrates: IEBC gazetted an MCA nominee who wasn't a registered voter, so her nomination was voided and the petitioner took the seat.

What this practically means

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Executive summary

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This was a party list election petition filed on 25th September 2017 by Hamdia Yaroi Shek Nuri challenging the gazettement of Faith Tumaini Kombe as a nominated Member of County Assembly for Tana River County by the IEBC on the Amani National Congress party list. The petitioner contended that the 3rd respondent was not a registered voter and therefore ineligible for nomination under Article 193(1)(a) of the Constitution, replicating section 25(1) of the Elections Act. The petitioner relied on certified screenshots from the IEBC's SMS platform showing the 3rd respondent and the second nominee, Catherine Muthoni Mwaura, were not registered voters. The IEBC's pleadings were struck out for being filed out of time without leave under Rule 11(8) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, so it took no part in the proceedings. Although the IEBC claimed in its response that the 3rd respondent was a registered voter, it produced no evidence despite being the custodian of the voters register. Applying the Court of Appeal's decision in Dickson Mwenda Githinji v Gatirau Peter Munya, the court held the evidential burden lay on the IEBC, accepted the petitioner's uncontroverted evidence, and found the 3rd respondent and the other nominee were not registered voters. The court further found the IEBC had failed its verification duties under Regulations 52(2), 54(5), 54(6) and 55(2) of the Elections (General) Regulations, 2012. The petition was allowed: the nomination was declared invalid, null and void, the gazette notice was set aside, and the IEBC was ordered to gazette the petitioner within 7 days, with costs to the petitioner.

Key legal issues

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01

Whether the 3rd respondent was validly nominated as a Member of County Assembly despite not being a registered voter

Holding

The nomination was invalid, null and void because the 3rd respondent was not a registered voter and therefore failed the eligibility requirement under Article 193(1)(a) of the Constitution

Reasoning

Article 193(1)(a) requires a candidate for Member of County Assembly to be a registered voter, a requirement replicated in section 25(1) of the Elections Act. The petitioner adduced uncontroverted evidence (SMS platform printouts certified under HYSN2) that the 3rd respondent and the second nominee were not registered voters. The IEBC, the constitutional custodian of the voters register, asserted registration but produced no evidence, failing its evidential burden. The court accepted the uncontroverted evidence and found the nominees unregistered.

p. 4
02

Whether the IEBC discharged its statutory duty in verifying and gazetting the nominees

Holding

The IEBC failed to discharge its statutory duties under Regulations 52(2), 54(5), 54(6) and 55(2) of the Elections (General) Regulations, 2012, resulting in the gazettement of an unqualified person

Reasoning

Under Regulation 52(2) the IEBC was required to satisfy itself that all nominees met the constitutional and statutory requirements. It could not rely on the absence of complaints after publication of names in the local dailies. Its failure under Regulations 54(5), 54(6) and 55(2) culminated in the gazettement of an unqualified person and necessitated the petition.

p. 4
03

Whether rejection of the two unqualified nominees should invalidate the 2nd respondent's party list

Holding

No; since only one of the three nominees was qualified, the rejection of the other two ought not to affect the party list, and the qualified petitioner could be gazetted

Reasoning

The party list contained only three nominees, of whom only the petitioner was qualified to hold the position of Member of County Assembly. The court held that rejecting the other two nominees should not affect the 2nd respondent's list, permitting the petitioner to be gazetted as the woman nominee in the gender top up list.

p. 5

Legal principles established

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  • The legal burden of proving allegations in an election petition rests with the petitioner, but the evidential burden to prove facts within the special knowledge of the IEBC, such as registration of voters, lies on the IEBC and cannot shift to the petitioner

Court orders

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  1. 1.A declaration that FAITH TUMAINI KOMBE was not eligible for nomination as a Member of County Assembly for Tana River County Assembly as she is not a registered voter
  2. 2.A declaration that the nomination of the 3rd Respondent as a Member of County Assembly was invalid, null and void
  3. 3.The nomination of FAITH TUMAINI KOMBE as a Member of County Assembly, Tana River County contained in Gazette Notice Number 8380 is set aside
  4. 4.The 1st respondent is ordered to forthwith, and in any case not later than 7 days from the date of the judgment, Gazette the petitioner, HAMDIA YAROI SHEK NURI, among the duly nominated Members of County Assembly of Tana River County for being the woman nominee of the 2nd respondent in the Gender top up list
  5. 5.The 1st respondent shall bear the petitioner's costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 193(1)(a)
  • Elections ActSection 25(1)
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rule 11(8)
  • Elections (General) Regulations, 2012Regulations 52(2), 54(5), 54(6), 55(2)
  • Evidence ActSection 112

Cases cited (1)

  • Dickson Mwenda Githinji v Gatirau Peter Munya & 2 Others
    [2014] eKLR
Jurisdiction invoked
Elections Act and Elections (Parliamentary and County Elections) Petitions Rules, 2017 - party list election petition for Member of County Assembly, Tana River County Assembly

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, "Hamida Yaroi Shek Nuri v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 79 (KLR)", Case Analysis (2018). Election Petition dated 25th September, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/79/eng@2018-01-19

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