Katangie v Orange Democratic Movement Party & 2 others; Nchoe & 2 others (Interested Parties) (Election Petition E005 of 2022) [2023] KEMC 7 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the Election Court over post-gazettement nomination disputes
The court has jurisdiction to hear the petition challenging gazetted nominations; the PPDT's role ended upon gazettement.
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.
Whether nomination of a person who has previously benefited from party list nomination is barred
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.
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.
Whether the PPDT directed that the petitioner be listed as number one
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.
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.
Burden of proof on the petitioner
The petitioner failed to discharge the burden of proving non-conformity with the law and that it affected the validity of the nominations.
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.
Legal principles established
#- 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
#- 1.The prayers b, c, d, e, f, g, h, i, j and k in the petition are denied
- 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.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.A certificate to issue under Section 86(1) of the Elections Act, 2011
- 5.Costs awarded to the respondents as the successful parties
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.