Kalinga v Independent Electoral & Boundaries Commission & 10 others; Orange Democratic Movement & 7 others (Interested Parties) (Election Petition E002 of 2022) [2023] KEMC 12 (KLR)
The bottom line
#The Kwale Election Court dismissed a challenge to county assembly nominations because the petitioner skipped the IEBC and PPDT dispute processes first.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over pre-election nomination disputes raised in an election petition
The court lacks jurisdiction where the Petitioner did not first present nomination-related complaints to the IEBC Dispute Resolution Committee or the Political Parties Disputes Tribunal
Section 74 of the Elections Act and Section 4 of the IEBC Act vest the settlement of disputes relating to or arising from nominations in the Commission, excluding election petitions and disputes subsequent to declaration of results. The Petitioner's complaints about party list composition and voter registration arose before the nominations and should have been raised at the proper forum and time. Authorities relied on by the Commission establish that a litigant cannot ignore a statutory dispute resolution mechanism and rush to court under the guise of a constitutional petition.
Residency and voter registration of the 2nd, 3rd and 11th Respondents
Residency in the county is not a legislative requirement for nomination; the voter-registration complaint is a pre-election dispute outside the court's jurisdiction, and the Petitioner lacks locus to challenge lists of parties she does not belong to
The Petitioner did not point to any legal provision requiring residency. Article 193 requires only that a person be a registered voter. The 3rd Respondent was nominated by the Petitioner's own party PAA, a complaint for the Commission or PPDT; as to the other Respondents' lists, the Petitioner, a member of PAA only, lacked the necessary locus. Party lists are closed lists which the IEBC cannot rearrange.
Proper formula for allocating nomination seats
The Commission correctly allocated the four mandatory special seats first, then six gender top-up seats, using Regulation 56(2), excluding the independent candidate's seat and treating the categories separately, totalling ten seats
Section 36(8) of the Elections Act mandates four special seats from the marginalized category list, which must be allocated first because their gender composition affects the gender top-up computation. Nineteen elected males constituted two-thirds, requiring ten female members in total; with five already in place (one elected, four nominated), six seats remained for gender top-up. The Petitioner's formula of thirteen seats was wrong as it did not treat the categories separately.
Breaking the tie for the remaining special seat among five parties with one seat each
In the absence of legislation, the Commission lawfully allocated the remaining seat to UDM as the party with the highest votes, a permissible response to a lacuna
It was not possible to split one seat among five parties of equal seat strength, and the Commission could not lawfully create additional seats. Relying on Harold Kimuge Kipchumba, the court held the Commission had latitude in designating nominees to comply with the Constitution and electoral laws where the law is silent. The Commission identified this as a lacuna it had proposed for legislative reform.
Consequences of filing Responses out of time without seeking extension
Responses and Replying Affidavits of the 2nd to 10th Respondents and 4th Interested Party, filed out of time without any application for extension or deemal, were expunged from the record
Although Rule 19 of the Election Petitions Rules grants the court power to extend time, a party desiring such extension must move the court by application and lay sufficient basis. None of the parties (other than the Commission, whose application was allowed) did so. Rule 14(b) then bars such a respondent from appearing or acting against the petition, and their documents and submissions were unavailable for consideration.
Legal principles established
#- A party who fails to utilise the special statutory dispute resolution mechanisms for nomination disputes cannot present the same dispute in an election petition
- Responses filed out of time without an application to extend time must be struck out and such parties excluded under Rule 14(b) of the Election Petitions Rules
- There is no requirement that a person elected by nomination to a county assembly be a resident of that county
- Party lists are closed lists and the IEBC has no power to rearrange them or pick candidates other than in order of priority
- The four special seats under the marginalized category are mandatory and must be allocated separately before computing gender top-up seats
Court orders
#- 1.The Petition is hereby dismissed
- 2.The 2nd to the 11th Respondents and the 4th Interested Party will bear their own costs of the Petition; the Petitioner will bear the costs of the 1st Respondent capped at Ksh.400,000/=
- 3.A certificate of determination in accordance with Section 86 of the Elections Act to issue to the Independent Electoral and Boundaries Commission and the Speaker of the County Assembly of Kwale
- Jurisdiction invoked
- Election petition under the Elections Act and Election Petitions Rules, 2013 (Articles 88 and 177 of the Constitution invoked by parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalinga v Independent Electoral & Boundaries Commission & 10 others; Orange Democratic Movement & 7 others (Interested Parties) (Election Petition E002 of 2022) [2023] KEMC 12 (KLR)", Case Analysis (2023). Kwale Chief Magistrates' Court Election Petition No. E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/12/eng@2023-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.