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MagistrateDismissedElection Petition (not stated in extract; petition dated 16th September 2022)· [2023] KEMC 8 (KLR)

Nkowua v Independent Electoral and Boundaries Commission & 4 others (Election Petition E004 of 2022) [2023] KEMC 8 (KLR)

Chief Magistrate's Court at Narok (Election Court)
28 February 2023
5,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, apparently a resident/voter of Narok County, petitioned in September 2022 for declarations and orders quashing the nomination of the 2nd respondent via the ANC Party gender top-up list to the Narok County Assembly, gazetted on 9th September 2022, contending the nominee was not a Narok resident or voter, was not validly a party member, and that her nomination violated Articles 100 and 177 of the Constitution, Sections 34 and 36 of the Elections Act and Section 7 of the County Government Act. All respondents opposed; the 3rd respondent filed no response. The court framed four issues: validity of the nomination, competence of the petition, the petitioner's further affidavit, and costs. On competence, it held it had been specifically gazetted under Article 169 and Section 75(1)(a) of the Elections Act and, following the Supreme Court in Moses Mwicigi and Jane Cheperenger, that post-gazettement nomination disputes lie originally in the election court. On the further affidavit, filed without leave contrary to the court's earlier direction denying a rejoinder, it struck out and expunged it. On the merits, the petitioner bore the burden under Sections 107, 109 and 112 of the Evidence Act and the Raila Odinga 2013 threshold, but adduced no evidence rebutting the Chief's letter confirming the 2nd respondent's residency and marriage, nor cited any provision requiring nomination only in the county of voter registration. The Assembly's diverse composition defeated the ethnicity-based challenge. All prayers were denied; the court declared the 2nd respondent duly qualified and validly nominated, directed issuance of a certificate under Section 86(1), and awarded costs to the respondents as costs follow the cause. The right of appeal was explained.

Key legal issues

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01

Jurisdiction of the election court over post-gazettement nomination disputes

Holding

The court has original jurisdiction; publication of the Gazette Notice completes the election through nomination and shifts consequential disputes to the election court

Reasoning

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).

p. 8
02

Whether the further affidavit of the petitioner should be struck out

Holding

Struck out and expunged from the record for having been filed without leave contrary to the court's earlier direction

Reasoning

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.

p. 10
03

Whether the 2nd respondent was lawfully and validly nominated

Holding

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

Reasoning

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.

p. 10
04

Burden of proof in election petitions

Holding

Lies on the petitioner, at a threshold above balance of probabilities but not beyond reasonable doubt

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The prayers a, b, c, d and e in the petition are denied
  2. 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. 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. 4.A certificate to issue accordingly 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 27, 38(3), 87(3), 88(4), 90, 90(2), 100, 169, 177, 193(1), 197
  • Elections ActSections 34, 34(8), 35, 36, 39, 40, 75(1)(a), 77(2), 84, 86(1)
  • Elections (General) Regulations, 2012/2017Regulations 54(1), 54(8), 55(1), 56, 16(4) and (5)
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 10, Rule 30(1)
  • County Government ActSection 7
  • Political Parties ActSections 17, 39, 40
  • Evidence ActSections 107, 109, 112
  • Civil Procedure Act and Rules made thereundernot applicable to election disputes (argued by 1st respondent)

Cases cited (19)

  • Rose Wairimu Kamau and 3 Others Vs IEBC
    [2013] e KLR; C.A. No. 169 of 2013 / CA No. 16 of 2013
  • Commissioner for the Implementation of the Constitution Vs Attorney General & 2 Others
    [2013] e KLR
  • Isaack Osman Sheikh Vs Independent Electoral & Boundaries Commission & 2 Others
    [2014] e KLR
  • Aden Noor Ali V Independent Electoral & Boundaries Commission & 2 Others
    [2018] e KLR
  • Abdikham Osman Mohamed & Another V Independent Electoral & Boundaries Commission & 2 Others
    [2013] e KLR
  • Richard Nchapi Leiyagu Vs Independent Electoral & Boundaries Commission & 2 Others
    [2013] e KLR
  • Shiyenji Silas Muyeyia & Another Vs Benson Manuni Mulinya & 2 Others
    [2017] e KLR
  • Florence Bwogi Ochieng Versus Orange Democratic Movement Party
    [2017] e KLR
  • Lydia Mathia Vs. Naisura Lesuda and IEBC
    Election Petition No. 13 of 2013
  • Raila Odinga -Vs- IEBC & 3 Others
    Election Petition No. 5 of 2013
  • Dennis Kaniaru Mathenge Vs IEBC & 7 Others
    [2018] e KLR
  • Moses Mwicigi & 15 Others (also cited as Moses Mwicigi & 14 Others Vs IEBC & 5 Others)
    [2016] e KLR
  • National Gender and Equality Commission Versus IEBC
    (2013) e KLR
  • Margaret Wambui Kamau Versus IEBC & Another
    [2013] e KLR
  • David Okeka Oyugi Vs. Muslim Dida & 2 Others
    [2016] e KLR
  • Monicah Gathoni Githae & Anor Vs. IEBC & 5 Others
  • 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
  • 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; gazettement by the Honourable Chief Justice to determine election disputes

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, "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.