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MagistrateDismissedElection Petition (Nairobi)· [2018] KEMC 83 (KLR)

Peter Muchiri Mwangi v Independent Electoral and Boundaries Commission [2018] KEMC 83 (KLR)

Magistrates' Court (Election Court), Milimani Commercial Court at Nairobi
12 January 2018
3,781 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan election court dismissed a petition challenging county assembly nominations, confirming that IEBC must publish party lists exactly as political parties rank them.

What this practically means

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Executive summary

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Peter Muchiri Mwangi petitioned on 4th September 2017 seeking an injunction restraining the 2nd and 3rd Interested Parties from being sworn in as nominated members of the Nairobi County Assembly, declarations that Jubilee Party's party lists for the Marginalized Groups category published on 23rd July 2017 and gazetted on 28th August 2017 were unconstitutional, and an order for reconstitution of the list with the Petitioner gazetted in the persons with disability category. He alleged violation of Article 177(1)(c) of the Constitution and Section 36(3) of the Elections Act. IEBC contended that Kenya operates a closed party list system under which it merely publishes the list as submitted by the party; Jubilee Party stated it had complied with the Political Parties Dispute Tribunal orders and had included the Petitioner in its list, with selection thereafter being IEBC's mandate. The court framed three issues and held that Jubilee Party complied with the Tribunal orders by submitting a reconstituted list on 16th/17th August 2017 listing the Petitioner first among persons living with disability, that IEBC had no power to rearrange a closed list, and that the Petitioner's own admissions in cross-examination destroyed his claim. Applying the Raila Odinga (2013) standard, the court found the burden of proof undischarged. The petition was dismissed with capped instruction fees of Kshs.100,000/= each to the Respondent and the 1st and 3rd Interested Parties, payable from the security deposit, and a certificate of determination under Section 86(1) of the Election Act was directed to issue.

Key legal issues

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01

Whether Jubilee Party complied with the Political Parties Dispute Tribunal orders in reconstituting its party list

Holding

Jubilee Party complied by submitting a fresh list to IEBC on 16th August 2017 with the Petitioner listed first among persons living with disability.

Reasoning

Following the Tribunal's consent orders in complaints No.384 and No.454 of 2017, Jubilee Party submitted a reconstituted list in which the Petitioner was listed in position 5 and as first person living with disability, and marginalized categories were enhanced. The court found the Respondent duly complied and submitted a reviewed compliant list.

p. 4
02

Whether Gazette Notice No.8380 of 28th August 2017 nominating the 2nd and 3rd Interested Parties complied with the Constitution and Election Act

Holding

The gazette notice was lawful; IEBC published the list as received from Jubilee Party and had no power to reorganize a closed list.

Reasoning

Under Article 90 and Section 36 of the Election Act, Kenya adopts a closed list system. Parties rank their preferred candidates and IEBC fills seats in the order given by the party. It would have been an illegality for IEBC to reorganize the list. The Petitioner admitted the final list catered for all categories.

p. 5
03

Whether the Petitioner proved violation of Article 177(1)(c) and Section 36(3) of the Election Act

Holding

The Petitioner failed to discharge the burden of proof; his own admissions contradicted his claim.

Reasoning

The Petitioner admitted in cross-examination that the final list contained all required categories and that the published list was in order. His claim that Jubilee's majority entitled him to nomination had no legal basis. The court found no evidence of violation of Article 177(1)(c), Section 36(3), or Articles 54, 55, 82, 100 and 177.

p. 7
04

Admissibility of new matters raised in submissions without pleading

Holding

Complaint No.522 of 2017 cited in submissions but not pleaded was inadmissible as new evidence.

Reasoning

Relying on Mohamud Muhumed Sirat v Ali Hassan Abdirahman, the court held that a decision must be based only on the pleadings filed, and declined to consider matters not pleaded but adduced through submissions.

p. 4

Legal principles established

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  • The standard of proof in an election petition is above the balance of probability though not as high as beyond reasonable doubt.
  • The legal burden in an electoral cause rests on the petitioner, with the evidential burden shifting.
  • In a closed list system, IEBC cannot reorganize a party list or pick a candidate other than the party's ranked preference.
  • A court's decision must be confined to matters pleaded; evidence on unpleaded matters is inadmissible.

Court orders

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  1. 1.Petition dismissed
  2. 2.Costs awarded to the 1st Respondent and 1st and 3rd Interested Parties
  3. 3.Instruction fees for Respondent capped at Kshs.100,000/=
  4. 4.Instruction fee for 1st and 3rd Interested Parties capped at Kshs.100,000/=
  5. 5.Certified taxed costs to be paid out of the security deposit on a pro-rata basis
  6. 6.Certificate of determination in accordance with Section 86(1) of the Election Act 2011 to issue to the Independent Electoral and Boundaries Commission

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 54, 55, 82, 88, 90, 97(1)(c), 100, 177(1)(b), 177(1)(c), 177(2)
  • Elections ActSections 34(4), 36(1), 36(2), 36(3), 36(8), 84, 86(1)
  • Election (General) Regulations, 2012Regulations 54(8), 56(2)

Cases cited (3)

  • Mohamud Muhumed Sirat v Ali Hassan Abdirahman & 2 Others
    Nairobi EP No.15 of 2008 (2010) KLR
  • Commissioner for the Implementation of the Constitution v The Attorney General & Others
    Civil Appeal No. 351 of 2012
  • Raila Odinga and Others v Independent Electoral and Boundaries Commission & 3 Others
    SCK Petition No. 5 of 2013 (2013) eKLR
Jurisdiction invoked
Election Act (Sections 84, 86(1)) - election court jurisdiction over nominated members of the 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, "Peter Muchiri Mwangi v Independent Electoral and Boundaries Commission [2018] KEMC 83 (KLR)", Case Analysis (2018). Election Petition (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/83/eng@2018-01-12

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