Ahmed v Deye & 2 others (Election Petition 1 of 2022) [2022] KEMC 14 (KLR)
The bottom line
#A Kenyan election court struck out a petition challenging a candidate's eligibility, ruling that complaints about candidates must go to the IEBC first, before the election.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to hear and determine the petition.
- 2.Whether the petition should be struck out.
Key legal issues
#Whether the challenge to the 1st respondent's eligibility (failure to resign from the National Police Service within the time stipulated under section 43(5) of the Elections Act) is a pre-election dispute outside the election court's jurisdiction
Yes - the dispute is a pre-election dispute within the IEBC's mandate under Article 88(4)(e), and the election court has no jurisdiction over it.
The court found the petition did not challenge the results or conduct of the August 9, 2022 election but only the 1st respondent's eligibility to vie. Since a pre-election dispute is one arising before the declaration of results, the eligibility challenge fell to be resolved by the IEBC in the first instance. The petitioner knew the facts before the election but failed to invoke the IEBC dispute resolution mechanism, and per the Mohamed Abdi Mahamud principles such a dispute cannot ground an election petition.
Whether the 1st respondent's preliminary objection dated November 1, 2022 has merit
The preliminary objection is merited as it raises a pure point of law - the jurisdiction of the court - and the petition is struck out.
Applying the Mukisa Biscuit definition, the objection was founded on a settled point of law (jurisdiction) applicable to undisputed facts. The court, guided by Samuel Kamau Macharia on the constitutional and statutory sources of jurisdiction and Lillian S Caltex on the consequences of lacking jurisdiction, concluded it had no jurisdiction and must down its tools, striking out the petition with costs.
Legal principles established
#- A pre-election dispute should be handled by the IEBC at the first instance and not the election court.
- An election court has no jurisdiction to hear a pre-election dispute that the petitioner knew of and failed to present to the IEBC for resolution.
- Where a statute establishes a dispute resolution procedure, that procedure must be strictly followed.
- Without jurisdiction a court has no power to make one more step and must down its tools.
Court orders
#- 1.The petition dated August 24, 2022 and its supporting affidavit are struck out with costs.
- 2.Costs of the struck out petition are awarded to the 1st respondent and assessed at Ksh 200,000/-.
- 3.Costs of the struck out petition are awarded to the 2nd and 3rd respondents and assessed at Ksh 200,000/-.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election court jurisdiction under Article 105 of the Constitution read with the Elections Act, 2011; jurisdictional challenge founded on Article 88(4)(e) of the Constitution, section 74(1) of the Elections Act and section 4(e) of the IEBC Act
Relief refused
#Determination that the election of the 1st respondent as MCA Chewani ward was null and void
The court lacked jurisdiction to entertain a pre-election dispute concerning the 1st respondent's eligibility, which ought to have been presented to the IEBC in the first instance.
Order for fresh elections for MCA, Chewani ward, Tana River County
The petition was struck out in its entirety for want of jurisdiction, so no consequential relief could issue.
Costs
Costs of the struck out petition awarded to the 1st respondent (Ksh 200,000/-) and to the 2nd and 3rd respondents (Ksh 200,000/-), both assessed.
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.
That the petition dated August 24, 2022 and its supporting afidavit are hereby struck out with costs.
Costs of the struck out petition are awarded to the 1st respondent and are assessed at Ksh 200,000/-.
Costs of the struck out petition are awarded to the 2nd and 3rd respondents and are assessed at Ksh 200,000/-.
It is therefore clear, to this court that a pre-election dispute should be handled by the IEBC at the first instance and not the election court.
Since the court has no jurisdiction, it must proceed to down its tool.
Issues in the judgment
#The judgment inconsistently dates the petition, describing it as filed on August 23, 2022 in the overview but as dated August 24, 2022 and filed August 25, 2022 in the orders.
The judgment does not state its own case/petition number or issue a neutral citation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed v Deye & 2 others (Election Petition 1 of 2022) [2022] KEMC 14 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/14/eng@2022-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.