Mogesi Agnes Bange & 8 others v Independent Electoral & Bounderies Commission & 13 others [2018] KEMC 84 (KLR)
The bottom line
#A Kenyan court nullified ODM's Migori County Assembly nominations, ruling that IEBC and ODM ignored a valid tribunal order and must seat the petitioners instead.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrates' Court over the petition
The court had jurisdiction because the gazetted nominees were deemed elected and any dispute as to that election lies in the election court
Relying on Section 75(1A) of the Elections Act and the Supreme Court's decision in Moses Mwicigi, the court held that nomination through party lists is a mode of election; gazettement ends IEBC's mandate and shifts disputes to election courts. The respondents' contention that the matter was a pre-nomination dispute failed since the 3rd to 13th respondents had been gazetted and sworn in.
Whether the PPDT judgment of 2nd August 2017 still stands
The PPDT judgment stands; this court could not overturn it as no appeal or subsisting stay existed
The court found the 1st petitioner duly moved the PPDT in Complaint No 497 of 2017, a judgment was rendered and served on the 1st and 2nd respondents. The 2nd respondent's judicial review leave operating as stay had been withdrawn. The respondents' objections to the PPDT's jurisdiction could only be raised on appeal or review, not collaterally in this court, as the PPDT decision has equal status under Section 41 of the Political Parties Act.
Whether the 1st and 2nd respondents acted in disregard of the law in gazetting the 3rd to 13th respondents
Yes; having been served with the PPDT judgment, gazetting a list it had annulled was unlawful
Evidence of service of the PPDT judgment (affidavit of service, stamped letters, the judicial review application itself) showed both respondents were aware of the order directing use of the harmonized list. Publishing the impugned list on the basis of a stay that had lapsed upon withdrawal of the judicial review proceedings disregarded a valid court order, rendering the subsequent gazettement illegal.
Legal principles established
#- Gazette notice marks the end of IEBC's mandate regarding nomination of party representatives and shifts consequential disputes to the Election Courts; nomination via party list is a mode of 'election' contested by election petition
- A party who knows of a court order, even one believed irregular or void, cannot disobey it but must apply to have it discharged
- A first-instance election court cannot entertain collateral attacks on a PPDT decision of equal status; challenges lie on appeal or review
Court orders
#- 1.A declaration that Gazette Notice No.8380 published by the IEBC on 28th August 2017, in so far as it lists the 3rd to 13th respondents as nominated Members of the county assembly of Migori under the gender Top-Up list, is illegal and void
- 2.The nomination and subsequent gazettement of the 3rd to 13th respondents vide Gazette No 8380 as nominated Members of the County Assembly in the ODM Party List is nullified
- 3.ODM and IEBC directed to adopt and gazette respectively the petitioners in accordance with the decision of the Political Parties Tribunal dated 2nd August 2017 in Complaint No 497 of 2017 (the harmonized list of twelve names)
- 4.The first and second respondents to jointly bear costs for the petition
- Jurisdiction invoked
- Section 75(1A) of the Elections Act, 2011 (Resident Magistrate's court designated by the Chief Justice to hear questions as to validity of election of a member of a county assembly)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mogesi Agnes Bange & 8 others v Independent Electoral & Bounderies Commission & 13 others [2018] KEMC 84 (KLR)", Case Analysis (2018). Election Petition No 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/84/eng@2018-01-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.