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MagistrateDismissedElection Petitions Nos 2 & 5 of 2017 (Consolidated)· [2018] KEMC 85 (KLR)

Hafidmaalim Ibrahim & another v Economic Freedom Party & 3 others [2018] KEMC 85 (KLR)

Senior Resident Magistrates' Court at Mandera
9 January 2018
PAP. N. Areri
4,084 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mandera court dismissed two election petitions because the petitioners skipped the required IEBC process and proved nothing beyond suspicion.

What this practically means

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Executive summary

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Two consolidated election petitions challenged the nomination of Issack Dahir Abdi and Halima Billow Omar by the Economic Freedom Party to two special seats (youth and person with disability) in the Mandera County Assembly following the August 2017 general election. The 1st petitioner alleged he was promised an automatic nomination slot and was instead listed in the wrong category, while the 2nd petitioner claimed he ranked first for youth in the party list submitted to the IEBC on 21st August 2017 pursuant to orders of the Political Parties Disputes Tribunal, and that the published and gazetted list had been irregularly altered. The petitioners sought nullification of the nominations and declarations that they were the duly nominated representatives. All respondents denied the allegations, maintaining the nominations followed the law and the party's list. The court framed six issues, found it undisputed that the petitioners and nominees were party members and eligible, and noted the fresh list placed the 3rd respondent first for youth and the 4th respondent first for persons with disabilities. Applying section 74 of the Elections Act, the court held the disputes related to prospective nominations that ought to have been settled by the IEBC before the nominations, so the petitions were an abuse of process. It further held the petitioners proved nothing, relying on suspicion and conjecture, and that the nominations were valid. The petitions were struck out and/or dismissed with costs to the respondents, borne severally by the petitioners.

Key legal issues

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01

Jurisdiction over nomination disputes arising after declaration of election results

Holding

The court had no jurisdiction; the IEBC is the mandated body to settle such disputes before the date of nomination

Reasoning

Section 74 of the Elections Act vests settlement of nomination disputes in the IEBC, and disputes concerning prospective nominations must be determined before the nomination or election date. The nominations here were to occur after declaration of ward results, so the petitioners were required to go to the Commission first. Having failed to do so without explanation, they were forum shopping and the petitions were improperly before the court.

p. 8
02

Whether the petitioners proved breach of nomination rules, the Elections Act or the Constitution

Holding

No - allegations were not proved

Reasoning

The petitioners alleged that the party list was altered, varied or manipulated to favour the 3rd respondent and that the 4th respondent was wrongly gazetted as disabled. The court found the petitioners produced no cogent evidence, relying only on suspicion, perception and conjecture, which cannot meet the elevated evidentiary threshold applicable in election petitions.

p. 8
03

Validity of the 3rd and 4th respondents' nominations

Holding

The nominations were valid and in accordance with the Constitution and the law

Reasoning

It was not in dispute that the nominees were party members and eligible, that the initial party list had been nullified by the Political Parties Disputes Tribunal and a fresh list prepared, and that in the subsequent list the 3rd respondent ranked first for youth and the 4th respondent first for persons with disabilities. The court accordingly found the nominations compliant with Articles 90 and 177 and sections 34-37 of the Elections Act.

p. 9

Legal principles established

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  • The burden of proving allegations in an election petition lies with the petitioner, to a standard higher than a balance of probabilities but below beyond reasonable doubt
  • A party list submitted under the Elections Act cannot be amended during the term of parliament or the county assembly for which the candidates were elected
  • Disputes relating to prospective nominations must be settled by the IEBC before the date of the nomination or election

Court orders

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  1. 1.Strike out and/or dismiss the petitions dated 4th September 2017 and 15th September 2017 (consolidated)
  2. 2.Costs of the petitions to the respondents, to be borne by the petitioners severally

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10(2)(b), 38, 81, 88(1), 88(4)(e), 90(1)(2)(3), 91, 97(1)(c), 98(1)(b)(c)(d), 177(1)(b)(c)(2)(3)(4)
  • Elections Act No. 24 of 2011Sections 2, 28, 34, 35, 36, 37, 74
  • Elections (Party Primaries and Party Lists) Regulations 2017
  • Political Parties Act

Cases cited (1)

  • Benard Shinali VS Boni Khalwale
    2011 eKLR
Jurisdiction invoked
Elections Act No. 24 of 2011 (including section 74) and the Elections (Party Primaries and Party Lists) Regulations 2017

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, "Hafidmaalim Ibrahim & another v Economic Freedom Party & 3 others [2018] KEMC 85 (KLR)", Case Analysis (2018). Election Petitions Nos 2 & 5 of 2017 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/85/eng@2018-01-09

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