Peter Muchiri Mwangi v Independent Electoral and Boundaries Commission [2018] KEMC 83 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether Jubilee Party complied with the Political Parties Dispute Tribunal orders in reconstituting its party list
Jubilee Party complied by submitting a fresh list to IEBC on 16th August 2017 with the Petitioner listed first among persons living with disability.
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.
Whether Gazette Notice No.8380 of 28th August 2017 nominating the 2nd and 3rd Interested Parties complied with the Constitution and Election Act
The gazette notice was lawful; IEBC published the list as received from Jubilee Party and had no power to reorganize a closed list.
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.
Whether the Petitioner proved violation of Article 177(1)(c) and Section 36(3) of the Election Act
The Petitioner failed to discharge the burden of proof; his own admissions contradicted his claim.
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.
Admissibility of new matters raised in submissions without pleading
Complaint No.522 of 2017 cited in submissions but not pleaded was inadmissible as new evidence.
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.
Legal principles established
#- 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
#- 1.Petition dismissed
- 2.Costs awarded to the 1st Respondent and 1st and 3rd Interested Parties
- 3.Instruction fees for Respondent capped at Kshs.100,000/=
- 4.Instruction fee for 1st and 3rd Interested Parties capped at Kshs.100,000/=
- 5.Certified taxed costs to be paid out of the security deposit on a pro-rata basis
- 6.Certificate of determination in accordance with Section 86(1) of the Election Act 2011 to issue to the Independent Electoral and Boundaries Commission
- Jurisdiction invoked
- Election Act (Sections 84, 86(1)) - election court jurisdiction over nominated members of the County Assembly
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.