Omar v Independent Electoral and Boundaries Commission (IEBC) & 14 others (Election Petition E005 of 2022) [2022] KEMC 7 (KLR)
The bottom line
#A Kenyan election court refused to dismiss a petition over nominated county assembly seats, ruling that the objection raised disputed facts rather than a pure point of law.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 5th respondent's preliminary objection has met the legal threshold of a preliminary objection
- 2.Whether the preliminary objection is merited or not
Key legal issues
#Whether the preliminary objection met the legal threshold of a true preliminary objection
It did not; it rested on contested facts including whether the dispute was pre-election, whether remedies were exhausted and whether the petition seeks to enforce PPDT orders
Applying Mukisa Biscuit and Sir Charles Newbold P's formulation, the court held that jurisdictional objections qualify as POs, but this PO required interrogation of facts such as whether the petition concerned the 9th September 2022 gazettement or pre-election nomination processes, whether the petitioner exhausted IEBC/PPDT mechanisms, and the effect of the PPDT proceedings. Parties contested these facts, so determinations had to await full trial.
Whether an election court can entertain a dispute over the gazettement of nominated members of a County Assembly
Yes; upon gazettement, the only avenue of challenge is an election petition under Section 75(1A) of the Elections Act
The court agreed that pre-election nomination disputes fall within the exclusive jurisdiction of the IEBC under Article 88(4)(e) and Section 74 of the Elections Act. However, once the 1st and 2nd Respondents gazetted the nominated members on 9th September 2022, the dispute became a post-gazettement question as to the validity of the election of members of a County Assembly, reserved for the designated Resident Magistrate's Court.
Whether the petition amounts to an appeal from or enforcement of the PPDT decision
Premature to determine; whether the petition seeks to enforce the PPDT orders depends on evidence and trial
The court acknowledged the Supreme Court's guidance in Mohamed Abdi Mahamud and Silverse Lisamula Anami on when an election court may consider pre-election matters, but held that whether the petition is a disguised appeal or enforcement action, and whether the nominated list complied with the PPDT consent orders, are contested factual questions unsuitable for summary determination on a PO.
Legal principles established
#- Upon gazettement of nominated members of a County Assembly, any dispute as to that nomination can only be challenged by way of an election petition before a designated Resident Magistrate's Court under Section 75(1A) of the Elections Act
- A preliminary objection must raise a pure point of law and cannot be sustained where contested facts must be ascertained
- Proof of exhaustion of a prescribed alternative remedy is a matter of evidence to be established at trial, not on a preliminary objection
Court orders
#- 1.The 5th Respondent's Notice of Preliminary Objection dated 11th October 2022 is dismissed in its entirety
- 2.Costs of the preliminary objection awarded to the Petitioner against the 5th Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 105 of the Constitution and Section 75(1A) of the Elections Act (Resident Magistrate's Court designated as an Election Court)
Relief refused
#Dismissal of the Petition for want of jurisdiction
The PO was hinged on contested facts requiring evidence at trial; it failed the threshold of a pure point of law
Costs
Costs of the preliminary objection to the Petitioner, as against the 5th Respondent, she being the architect of the P.O.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the foregoing the court hereby makes a final determination that the 5th Respondent's P.O herein in its several limbs jointly and severally per the notice of P.O lacks merit and is dismissed in its entirety with costs to the Petitioner as against 5th respondent as she is the architect of the P.O under consideration.
What is obvious beyond any peradventure is that upon the above gazettement of 4-15 Respondent as members of the County Assembly of Mandera by the 1st and 2nd Respondents, any dispute as relates to this nomination can only be challenged and resolved by way of an election petition.
The proof of 'exhaustion of prescribed, and or alternative remedy' can be safely and conclusively proved by evidence which is in the province of factual exploration.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
Issues in the judgment
#The judgment does not state the election petition case number, the court station, or the parties' full names/roles beyond the petitioner and institutional respondents; the coram lists only counsel placeholders without names
The judgment contains typographical errors in case names and repeated transposition of 'effect' as 'efiect', including within quoted holdings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar v Independent Electoral and Boundaries Commission (IEBC) & 14 others (Election Petition E005 of 2022) [2022] KEMC 7 (KLR)", Case Analysis (2022). Not stated in the judgment (Election Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/7/eng@2022-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.