Mibei & 5 others v Kirui & 2 others (Election Petition E01 of 2022) [2022] KEMC 13 (KLR)
The bottom line
#The Kericho court dismissed an election petition challenging an MCA's election, finding allegations of dual identity and forgery unproven and the petition itself fatally defective.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is the scope of an election petition court in as far as clearance and registration of candidates in political contests are concerned?
- 2.Is it the duty of this court to interrogate issues or processes of political candidates' nominations and their identities?
- 3.Can it address issues of police clearance certificates?
- 4.Whether the Petition herein must succeed or fail in the end and at whose costs?
Key legal issues
#Jurisdiction of an election court over pre-election matters
The court has power to examine pre-election issues of eligibility in testing the validity of an election, provided the issues were not conclusively determined elsewhere
Applying the Supreme Court's decision in Silverse Lisamula Anami v IEBC, the court held that an election court entrusted with examining the validity of an election may investigate issues of eligibility arising pre-election, including registration and clearance, where no prior determination exists. The Petitioners had raised no complaint before the IEBC or PPDT, so the court could examine the issues.
Alleged dual identity cards and forgery
Not proved; the online print-outs could not be verified without the input of the Registrar of Persons
The court could not ascertain whether the two names and identity numbers referred to the same individual, given the absence of evidence from the Registrar of Persons and the 2nd Respondent's categorical assertion that he holds only one identity card. The allegations of forgery and questionable character under Chapter 6 were therefore not established.
Criminal allegations and police clearance
Not proved; conflicting clearance certificates could not be adjudicated without the DCI/DPP, and a pending case cannot disqualify a candidate
Two DCI clearance certificates were exhibited, one showing no offence and one showing a charge of stealing with no trial outcome. The court could not tell which was genuine without the input of the DCI/DPP, and the presumption of innocence protected the 2nd Respondent.
Split among petitioners and lack of supporting affidavits
The split among the Petitioners and absence of affidavits supporting the Petition was a fatal defect
Three of the six Petitioners did not consent to the Petition, and only the 1st Petitioner swore the verifying affidavit. Relying on Lesirma Simeon Simanga v IEBC, the court held this defect fatal, not curable as a technicality.
Legal principles established
#- An election court may examine pre-election issues such as eligibility of a candidate only to the extent that they have not been conclusively determined by the IEBC, PPDT or the High Court
- Following County Assembly Forum, an MCA candidate need only satisfy the requirements of Article 193 of the Constitution, there being no law imposing academic qualifications
- A pending criminal case cannot be used against a candidate who must be presumed innocent
- Lack of supporting affidavits due to a split among petitioners is a fatal defect, not a mere technicality
Court orders
#- 1.The Petition is dismissed with costs to the 1st and 2nd Respondents
- 2.Costs to be borne by Petitioners 1st, 3rd and 4th only; the 2nd, 5th and 6th Petitioners are not condemned to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election petition under the Elections Act and Articles 88(4)(e), 105(1) and 193 of the Constitution
Relief refused
#Setting aside of the declaration of the 2nd Respondent as MCA for Tebesonik Ward
Petitioners failed to prove their case to the required standard; the court could not establish the dual-identity and criminal allegations
Nullification of the Tebesonik Ward election held on August 9, 2022
No ground for nullification under section 83 of the Elections Act was proved
Costs
Petition dismissed with costs to the 1st and 2nd Respondents; costs borne by the 1st, 3rd and 4th Petitioners only; the 2nd, 5th and 6th Petitioners not condemned to costs
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.
I inevitably, find that the Petition is without merit and it is only ripe for dismissal with costs to the 1st and 2nd Respondents. The costs will be borne by Petitioners 1s t, 3 rd and 4th only.
the election Court stands as the custodian of the Constitution in matters of elections with the ultimate mandate of investigating the legitimacy of an election
the existence of a court case without the outcome yet, cannot be used against the 2nd Respondent who must be constitutionally presumed innocent till proven otherwise the criminal process
the bare minimum requirements under Article 193 of the Constitution (supra) as all that a candidate for MCA position needs to vie for a political position
Issues in the judgment
#The judgment describes itself as 'this appeal' when quoting section 83 of the Elections Act, although the matter is a first-instance election petition
The 3rd Respondent (Attorney General) was never served and filed no response, yet remained a party throughout
The Petitioners had no written submissions on file at the conclusion of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mibei & 5 others v Kirui & 2 others (Election Petition E01 of 2022) [2022] KEMC 13 (KLR)", Case Analysis (2022). E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/13/eng@2022-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.