Bukura & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition E007 & E006 of 2022 (Consolidated)) [2023] KEMC 1 (KLR)
The bottom line
#A Mandera court removed a county assembly nominee because he joined UDM only after nominations closed, proving party membership records decide Kenya's nomination disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd respondent was a bonafide member and nominee of UDM at the relevant time
He was not a member at the time of publication of the party list (July 27, 2022) nor at gazettement (September 9, 2022); he only registered on September 11, 2022 and his membership cards were disowned
The Registrar of Political Parties' records, uncontroverted, showed registration on September 11, 2022 after nominations closed and after gazettement. The 3rd respondent failed to prove payment of membership fees or life membership status, and his proposers were not proved to be UDM members. Burden shifted to him under sections 107, 108 and 109 of the Evidence Act.
Whether the IEBC complied with its mandate in gazetting the nominee
The IEBC did not comply with the Constitution, electoral law and regulations; the gazetted list differed from the published party list of July 27, 2022, indicating the list was altered before gazettement
The list in the gazette notice (Abdow Bishar Maalim - Youth, Sokorey Maalim Isaakow, Bishar Hussein Farah) differed in names and priority from the Standard Newspaper publication of July 27, 2022. The IEBC's generalized response did not clarify the discrepancy. Though the IEBC cannot amend a party list without authorization, the facts showed amendment before gazettement, contrary to law.
Whether the non-compliance affected the validity of the nomination under section 83 of the Elections Act
The non-compliance materially and substantially affected the validity of the nomination, rendering the 3rd respondent's nomination a nullity
A person ineligible to participate in the nominations was gazetted and sworn in as MCA; the order of priority of the party list was not honoured, leaving PWD nominees unrepresented in the County Assembly. Even if the party had forwarded his name, the IEBC was bound to reject the nomination of a non-member per section 34(8) of the Elections Act.
What remedies flow under section 75(3) of the Elections Act
The court declared the 3rd respondent's election nullified, declared Suban Ahmed Abdinoor (next in order of priority) validly elected, and ordered the IEBC to gazette her forthwith
Under section 75(3) the court may declare whether the candidate was validly elected, which candidate was validly elected, and whether a fresh election is needed. UDM had three marginalised-category seats; one seat became available upon nullification. The next person in order of priority in the published valid list, a PWD nominee, stood elected.
Whether the court should recommend prosecution for perjury and forgery
Declined; the issue is better pursued through the criminal justice system
The petition proceeded by written submissions; the court did not thoroughly scrutinize documents for criminal purposes nor had expert assistance, and made no definitive findings on document authenticity. Aggrieved parties may lodge complaints with relevant agencies.
Legal principles established
#- A person nominated by a political party to a party list must be a member of that party on the date of submission of the party list
- The IEBC cannot alter or amend a party list submitted to it without the political party's authorization, and the definitive proof of party membership is by the Registrar of Political Parties
- Non-compliance with electoral law vitiates a nomination only if it materially affected the result
Court orders
#- 1.Declaration that Abdow Bishar Maalim was not validly elected and his election is nullified
- 2.Declaration that Suban Ahmed Abdinoor was validly elected
- 3.Finding that the party list as publicised in the Standard Newspaper of July 27, 2022 is the valid party list for the 2nd respondent under section 34(10) of the Elections Act, for use in the event vacancies arise under the marginalised category in the Mandera County Assembly
- 4.Direction that the 1st respondent issue forthwith and publish a gazette notice electing Suban Ahmed Abdinoor to the County Assembly of Mandera to represent PWD under the marginalised category
- 5.Certification of the determination to the Commission and the Speaker of Mandera County Assembly under section 86(1) of the Elections Act
- 6.Each party to bear its own costs in respect of both petitions
- Jurisdiction invoked
- Section 75(3) of the Elections Act (question as to validity of election of a member of county assembly, heard and determined by the Resident Magistrate's Court designated by the Chief Justice)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bukura & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition E007 & E006 of 2022 (Consolidated)) [2023] KEMC 1 (KLR)", Case Analysis (2023). Election Petition No. E006 of 2022 (Consolidated with Election Petition No. E007 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/1/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.