Matilder Auma Oloo v Independent Electoral & Bounderies Commission & 3 others [2018] KEMC 87 (KLR)
The bottom line
#A Kenyan court upheld a disability nomination to the Migori County Assembly, ruling that a missing disability certificate was not a serious enough flaw to cancel the nomination.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd respondent was qualified to be nominated to represent persons living with disabilities
The 3rd respondent was a person living with disability within Article 260 of the Constitution and section 2 of the Persons with Disabilities Act at the time of her application, and her subsequent registration with NCPWD cured the defect of missing certification
It was common ground that the 3rd respondent applied on 5/6/2017 without NCPWD certification, contrary to Regulation 15(2) of the Elections (Party Primaries and Party Lists) Regulations, 2017, having only registered on 13/7/2017. However, the uncontroverted evidence established she was physically disabled following a 2011 road traffic accident and disclosed her permanent disability in her application. The court held that her failure to seek certification at application stage was not a grave electoral malpractice justifying nullification, as her substantive qualification was proven.
Whether the 1st and 2nd respondents acted in utter disregard of the law in nominating and gazetting the 3rd respondent
The nomination and gazettement were done within the Constitution and electoral laws; the petition lacked merit
The 1st respondent demonstrated through the affidavit of Salome Oyugi that it exercised its mandate under Article 90(2) and section 34(6A) of the Election Act, issued guidelines, reviewed party lists and required resubmission before gazetting the final list on 28/8/2017. By the time of gazettement, the 3rd respondent was qualified and possessed all relevant documentation. The court also noted that neither the petitioner nor the interested party had raised the complaint before the Political Parties Tribunal or the IEBC committee when notices inviting complaints were issued.
Legal principles established
#- Where a candidate was in fact a person with disability at the time of nomination, failure to attach NCPWD certification to the nomination application is not a grave electoral malpractice warranting nullification of the election.
- A party list that is non-compliant must be rejected by IEBC, which must then allow the party to resubmit a compliant list or select a qualifying candidate.
Court orders
#- 1.The petition is dismissed with costs to the respondents
- Jurisdiction invoked
- Articles 90, 100 and 177 of the Constitution; the Election Act, No 24 of 2011 (court gazetted to hear election petitions concerning nomination of members of the County Assembly of Migori)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matilder Auma Oloo v Independent Electoral & Bounderies Commission & 3 others [2018] KEMC 87 (KLR)", Case Analysis (2018). Election Petition No 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/87/eng@2018-01-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.