Hamida Yaroi Shek Nuri v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 79 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 3rd respondent was validly nominated as a Member of County Assembly despite not being a registered voter
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
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.
Whether the IEBC discharged its statutory duty in verifying and gazetting the nominees
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
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.
Whether rejection of the two unqualified nominees should invalidate the 2nd respondent's party list
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
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.
Legal principles established
#- 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
#- 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.A declaration that the nomination of the 3rd Respondent as a Member of County Assembly was invalid, null and void
- 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.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.The 1st respondent shall bear the petitioner's costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.