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MagistrateDismissedElection Petition No E005 of 2022· [2023] KEMC 7 (KLR)

Katangie v Orange Democratic Movement Party & 2 others; Nchoe & 2 others (Interested Parties) (Election Petition E005 of 2022) [2023] KEMC 7 (KLR)

Chief Magistrate's Court at Narok (Election Court)
20 February 2023
6,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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The Narok Election Court upheld two ODM gender top-up nominations, ruling the petitioner failed to prove any violation of party rules or electoral law.

What this practically means

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Executive summary

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The petitioner challenged the nomination of the 1st and 2nd interested parties to the Narok County Assembly gender top-up list by the ODM party, seeking declarations that they were not validly nominated, that their nominations should be nullified and revoked, and that fresh nominations be conducted. She argued that the party breached its own Constitution and nomination rules, that the 1st interested party had benefited from party nominations more than once contrary to Rule 60(7) of the ODM Primary Rules, that the 2nd interested party was not a member of any political party, and that the party failed to comply with a PPDT judgment in consolidated Complaints No. 21 and 22 of 2022. The respondents and interested parties maintained the nominations complied with the Constitution, the Elections Act and party rules, invoked party autonomy, contended the PPDT never directed the petitioner's placement at number one, and argued the petition raised res judicata and pre-election issues. The court first confirmed its jurisdiction over post-gazettement nomination disputes, applying the Supreme Court decisions in Moses Mwicigi and IEBC v Jane Cheperenger, which place such disputes in the Election Court after gazettement. On the merits, the court held the petitioner had failed to discharge the burden of proof: Rule 60(7) only bars a candidate who has benefited more than once, the 2nd interested party had benefited only once and no evidence implicated the 1st interested party; the PPDT order did not require the petitioner to be listed first; and the party had reconstituted the list as directed. All prayers were denied and the nominations were declared valid, with a certificate issuing under Section 86(1) of the Elections Act and costs awarded to the respondents.

Key legal issues

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01

Jurisdiction of the Election Court over post-gazettement nomination disputes

Holding

The court has jurisdiction to hear the petition challenging gazetted nominations; the PPDT's role ended upon gazettement.

Reasoning

Relying on the Supreme Court in Moses Mwicigi and IEBC v Jane Cheperenger, the court held that gazettement completes the 'election through nomination' and shifts consequential disputes to the Election Court. The court was specifically gazetted to hear and determine this petition under Section 75(1)(A) of the Elections Act.

p. 9
02

Whether nomination of a person who has previously benefited from party list nomination is barred

Holding

Rule 60(7) bars a candidate who has benefitted MORE THAN ONCE; the 2nd interested party benefited only once and the 1st interested party was never previously nominated, so neither was barred.

Reasoning

The petitioner produced evidence only that the 2nd interested party served as a nominated MCA in 2017-2022, which amounts to one benefit only. No evidence established a prior nomination for the 1st interested party, who denied it and whose denial was unrebutted. Both grounds failed for lack of proof.

p. 11
03

Whether the PPDT directed that the petitioner be listed as number one

Holding

The PPDT order only directed the party, in its discretion, to consider the petitioner as the top nominee from Narok South; it did not require her placement at number one or removal of the interested parties.

Reasoning

The court read the PPDT order and found it did not displace the party's autonomy in nominating members it deemed fit. The party had in fact reconstituted the list, moving the petitioner from number 12 to 9, and this was sworn to on oath and never rebutted by the petitioner.

p. 11
04

Burden of proof on the petitioner

Holding

The petitioner failed to discharge the burden of proving non-conformity with the law and that it affected the validity of the nominations.

Reasoning

Applying Raila Odinga (2013) and Sections 107, 109 and 112 of the Evidence Act, the petitioner bore the burden of proving breach of the Constitution, electoral laws or party rules. Her allegations on regional imbalance, party leadership slots and membership were unsupported by evidence or rebutted.

p. 11

Legal principles established

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  • Upon gazettement of nominated members of County Assemblies, any aggrieved party must challenge the nomination by an election petition before the Election Court under Section 75 of the Elections Act
  • Publication of the Gazette Notice marks the end of IEBC's mandate regarding nomination of party representatives and shifts consequential disputes to the Election Courts
  • The burden of proof in election petitions lies on the petitioner and is above the balance of probabilities but below beyond reasonable doubt

Court orders

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  1. 1.The prayers b, c, d, e, f, g, h, i, j and k in the petition are denied
  2. 2.A declaration that the 1st and 2nd interested parties qualified for nomination for the gender top up lists in the County Assembly of Narok
  3. 3.A declaration that the 1st and 2nd interested parties were validly nominated as Members of the County Assembly of Narok in accordance with the Constitution of Kenya, 2010 and the Election Laws
  4. 4.A certificate to issue under Section 86(1) of the Elections Act, 2011
  5. 5.Costs awarded to the respondents as the successful parties

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 90(1), 90(2)(c), 169, 177(1)(b), 177(2), 193(1)
  • Elections Act, No. 24 of 2011Sections 34, 34(2), (5), (8), 36(2), (7), (9)(e), 59, 75(1)(A), 84, 86(1)
  • Political Parties ActSections 17(1)(a), 34
  • Elections (Party Primaries and Party Lists) RegulationsRegulation 15, 54, 55, 56(1)
  • Evidence ActSections 107, 109, 112
  • Civil Procedure ActSection 7
  • Election Petition (Parliamentary and County Elections) Petition Rules, 2017Rule 30(1)
  • ODM Party Primary Election Rules, 2021Rules 16(5)(b) and (d), 60(5), (7), (9), 63(9)

Cases cited (24)

  • Isaack Osman Sheikh Vs Independent Electoral and Boundaries Commission & 2 Others
    [2014] e KLR
  • Linet Kemunto Nvakeriga & Another Vs Ben Njoroge & 2 Others
    [2014] e KLR
  • Peter Muchiri Mwangi Vs IEBC
    [2018] e KLR
  • Raila Amolo Odinga & Another Vs IEBC & 2 Others
    [2017] e KLR
  • Silverse Lisamula Anami Vs IEBC & 2 Others
    Petition No. 30 of 2018
  • Samuel Ndiba Kihara & Another Vs Housing Finance Company of Kenya Limited & 2 Others
    [2006] e KLR
  • Margaret Wanjiru Ireri & 2 Others Vs Monica Gathoni & 4 Others
    [2018] e KLR Election Appeal No. 13 of 2018
  • Moses Mwicigi & 14 Others Vs IEBC
    (2015) e KLR / [2016] e KLR
  • Mohammed Mahamud Ali Vs IEBC
    [2019] e KLR
  • Raila Odinga & 2 Others Vs IEBC & 3 Others
    Petition Number 5 of 2013
  • Asha Abdi Vs IEBC & 2 Others
    [2018] e KLR
  • Lydia Nyaguthi Githendu Vs IEBC & 17 Others
    [2015] e KLR Civil Appeal 224 of 2013
  • Rose Moturi Mwene Vs IEBC & 3 Others
    [2018] e KLR
  • Margaret Nyathogora & 5 Others Vs IEBC & 14 Others
    [2028] e KLR Election Petition No. 2 of 2017
  • Lydia Mathia Vs Naisula Lesuuda & Another
    [2013] e KLR
  • Duncan Ochieng & 3 Others Vs Orange Democratic Movement Party
    [2017] e KLR Miscellaneous Election Petition Application 4 of 2017
  • Martha Wangari Karua Vs IEBC & 3 Others
    Election Petition Appeal No. 1 of 2017
  • The National Gender and Equality Commission Vs IEBC & Another
  • David Okeka Oyugi Vs. Muslim Dida & 2 Others
    [2016] e KLR
  • Monicah Gathoni Githae & Anor Vs. IEBC & 5 Others
  • Rose Wairimu Kamau & 3 Others Vs. IEBC
    C.A. No. 169 of 2013 (also cited as CA No. 16 of 2013)
  • Independent Electoral Boundaries Commission Vs Jane Cheperenger & 2 Others
    Supreme Court Petition No. 5 of 2016 (UR)
  • Jaldesa Tuke Debalo Vs. IEBC & Anor
    [2015] e KLR (also cited as [2016] e KLR)
  • Orange Democratic Movement Vs Yusuf Ali Mohamed & 5 Others
    [2018] e KLR
Jurisdiction invoked
Article 169 of the Constitution and Section 75(1)(A) of the Elections Act, after designation and gazettement by the Chief Justice

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Katangie v Orange Democratic Movement Party & 2 others; Nchoe & 2 others (Interested Parties) (Election Petition E005 of 2022) [2023] KEMC 7 (KLR)", Case Analysis (2023). Election Petition No E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/7/eng@2023-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.