Nkowua v Independent Electoral and Boundaries Commission & 4 others (Election Petition E004 of 2022) [2023] KEMC 8 (KLR)
The bottom line
#The Narok election court dismissed a petition challenging a county assembly gender top-up nomination, confirming the nominee was validly nominated and the petitioner failed to prove otherwise.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the election court over post-gazettement nomination disputes
The court has original jurisdiction; publication of the Gazette Notice completes the election through nomination and shifts consequential disputes to the election court
Relying on the Supreme Court in Moses Mwicigi and Jane Cheperenger, the court held that gazettement of nominated members finalises the nomination process and any aggrieved party must file an election petition before the election court under Section 75 of the Elections Act. The court had been specifically gazetted to hear this petition under Article 169 and Section 75(1)(a).
Whether the further affidavit of the petitioner should be struck out
Struck out and expunged from the record for having been filed without leave contrary to the court's earlier direction
The petitioner had been denied a rejoinder after failing to meet timelines. Filing a further affidavit without leave would open a floodgate and allow other parties to file responses and counter-responses. The court followed Shiyenji Silas Muyeyia in striking out such filings.
Whether the 2nd respondent was lawfully and validly nominated
Yes - the petitioner failed to prove the allegations that the 2nd respondent's name was not forwarded, that she was not a member, or that she was not a resident of Narok County
The petitioner bore the burden of proof but adduced no evidence to rebut the Chief's letter confirming residency, the voter and membership records, or the nomination application. She cited no legal provision requiring nomination only in the county of voter registration or a minimum membership period, and the Assembly's diverse composition undermined her ethnicity-based challenge.
Burden of proof in election petitions
Lies on the petitioner, at a threshold above balance of probabilities but not beyond reasonable doubt
Applying Sections 107, 109 and 112 of the Evidence Act and the Supreme Court's guidance in Raila Odinga 2013, a petitioner alleging non-conformity with electoral law must prove non-compliance and that it affected the validity of the election before respondents bear the evidential burden.
Legal principles established
#- Upon gazettement of nominated members of County Assemblies, any dispute is to be challenged by election petition in the election court, which has original jurisdiction
- The petitioner in an election petition bears the initial burden of proof at a threshold above balance of probabilities but below beyond reasonable doubt, and must show non-compliance affected the validity of the election
- A nominee need not be a registered voter in the county of nomination
Court orders
#- 1.The prayers a, b, c, d and e in the petition are denied
- 2.A declaration is issued that the 2nd respondent was duly qualified for nomination for the gender top up lists in the County Assembly of Narok
- 3.The 2nd respondent was validly nominated as a Member of the County Assembly of Narok in accordance with the Constitution of Kenya, 2010 and the Election Laws and Regulations
- 4.A certificate to issue accordingly 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; gazettement by the Honourable Chief Justice to determine election disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nkowua v Independent Electoral and Boundaries Commission & 4 others (Election Petition E004 of 2022) [2023] KEMC 8 (KLR)", Case Analysis (2023). Election Petition (not stated in extract; petition dated 16th September 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/8/eng@2023-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.