Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others
The bottom line
#Once IEBC gazettes a nominated MCA, the person is deemed elected and can only be challenged by election petition.
What this practically means
#The Supreme Court ruled that when the Independent Electoral and Boundaries Commission (IEBC) publishes a gazette notice listing nominated Members of County Assembly (MCAs), those nominees are considered elected. Any dispute about their nomination must be filed as an election petition in the High Court within 28 days. You cannot use a constitutional petition or judicial review to challenge a gazetted nomination. The Court also clarified that party lists for county assembly seats do not need to reflect regional and ethnic diversity, unlike lists for Parliament.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appeal before this court is incompetent, for non- compliance with procedure
- 2.what is the nature of the dispute before this court
- 3.what is the mandate of this court, as regards matters arising from nomination of representatives on the basis party lists
- 4.whether the Court of Appeal acted within its jurisdiction, by cancelling/revoking the Gazette Notice and ordering fresh nominations by the 2nd respondent
Key legal issues
#Whether the Court of Appeal had jurisdiction to revoke the gazettement of the appellants as nominated MCAs and order fresh nominations.
The Court of Appeal lacked jurisdiction because the dispute concerned the validity of an election (by nomination) after gazettement, which could only be challenged by an election petition, not through a constitutional petition or judicial review.
The Supreme Court held that the gazettement of nominees by IEBC completes the 'election through nomination' process, analogous to the issuance of Form 38 in a regular election. Once gazetted, the nominee is deemed elected, and any challenge to that election must be by way of an election petition filed within 28 days under Article 87(2) of the Constitution and section 76(1)(a) of the Elections Act. The Court of Appeal was not moved as an election court under section 85A of the Elections Act, and the proper course would have been to remit the matter to the High Court with directions. The appellate court's orders annulling the appointment and ordering fresh lists within seven days were therefore made without jurisdiction.
Whether the appeal was incompetent for non-compliance with Rule 33 of the Supreme Court Rules, 2012.
The appeal was not incompetent despite initial non-compliance, as the subsequent actions ensured the court had all requisite documentation, and striking it out would deprive the court of an opportunity to pronounce on substantial questions of law.
The Court acknowledged the importance of procedural rules but applied Article 159(2)(d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities. The Court found that the failure to adhere strictly to Rule 33 did not undermine its ability to deliver justice, and the appeal raised substantial questions of law that warranted determination.
Whether the party list for County Assembly seats must reflect regional and ethnic diversity under Article 90(2)(c) of the Constitution.
Article 90(2)(c) expressly exempts County Assembly seats from the requirement that party lists reflect regional and ethnic diversity.
The Court noted that Article 90(2)(c) states 'except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.' This exemption is based on the factual reality that counties usually have concentrations of particular ethnic identities, making regional diversity less relevant at the county level. The Court of Appeal erred in applying the diversity requirement to the Nyandarua County Assembly party list.
Legal principles established
#- Gazettement of a nominee by IEBC completes the election process for nominated seats.
- A gazetted nominee is deemed elected and can only be challenged via an election petition.
- Electoral disputes cannot be turned into constitutional petitions or judicial review cases.
- County assembly party lists are exempt from the constitutional requirement to reflect regional and ethnic diversity.
- Courts must not strike out appeals solely for procedural non-compliance if substantial justice can be done.
Court orders
#- 1.The Judgment and Orders of the Court of Appeal dated January 23, 2015 are hereby set aside.
- 2.The Petition of Appeal herein, is allowed.
- 3.The parties shall bear their own respective costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 224 of 2013 (as consolidated with Civil Appeal No. 238 of 2013)
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Judgment and Orders of the Court of Appeal dated January 23, 2015 are hereby set aside.
It is therefore clear that the publication of the Gazette Notice marks the end of the mandate of IEBC, regarding the nomination of party representatives, and shifts any consequential dispute to the election courts.
It is clear to us that the Constitution provides for two modes of 'election'. The first is election in the conventional sense, of universal suffrage; the second is 'election' by way of nomination, through the party list.
To allow an electoral dispute to be transmuted into a petition for the vindication of fundamental rights under article 165 (3) of the Constitution, or through judicial review proceedings, in our respectful opinion, carries the risk of opening up a parallel electoral dispute-resolution regime.
except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.
Key timeline
#Practical implications
#Strict election petition route required
When advising clients on nominated MCA disputes, you must file an election petition within 28 days of gazettement under Article 87(2) and section 76(1)(a) of the Elections Act. Do not use constitutional petitions or judicial review. If the Court of Appeal lacks election court jurisdiction, seek remission to the High Court with directions.
Certainty for nominated representatives
If your business engages with nominated MCAs, you can rely on their gazettement as final proof of their election. Their status cannot be overturned through ordinary court cases. Only an election petition can challenge their position, and that must be filed within 28 days. This reduces legal uncertainty when dealing with county assembly decisions.
Know your rights to challenge nominations
If you believe a nominated MCA was wrongly appointed, you must act fast. You have only 28 days from the date IEBC publishes the gazette notice to file an election petition at the High Court. You cannot use a constitutional petition or judicial review. Also, note that county assembly party lists do not need to represent different ethnic groups, only Parliament lists do.
Frequently asked questions
#Can I challenge a nominated MCA in Kenya through a constitutional petition?+
No. The Supreme Court ruled that once IEBC gazettes a nominated MCA, the person is deemed elected. Any challenge must be by election petition filed within 28 days under the Elections Act. Constitutional petitions or judicial review cannot be used for such disputes.
What happens if IEBC gazettes a nominee for county assembly in Kenya?+
Gazettement completes the election process for nominated seats. The nominee is considered elected and can take office. Their election can only be challenged by an election petition in the High Court within 28 days. This applies to all nominated MCAs in Kenya.
Do party lists for county assembly seats in Kenya need to reflect ethnic diversity?+
No. Article 90(2)(c) of the Constitution exempts county assembly seats from the requirement that party lists reflect regional and ethnic diversity. This exemption applies because counties often have concentrated ethnic populations, making diversity less relevant at that level.
Can the Court of Appeal in Kenya cancel a gazetted nomination for MCA?+
Only if it is acting as an election court under section 85A of the Elections Act. In this case, the Court of Appeal lacked jurisdiction because the dispute was brought as a constitutional petition, not an election petition. The Supreme Court set aside its orders.
Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chilumo & 94 others v Official receiver, sued as the provisional liquidator of Concord Insurance Co Ltd (In Liquidation) & 6 others (Environment and Land Case E058 of 2022) [2026] KEELC 5008 (KLR)[2026] KEELC 5008 (KLR)30 Jul 2026
- Ecosee Mwananchi Limited & another v Chairperson, Business Premises Rent Tribunal, Nairobi & another (Environment and Land Judicial Review Case E021 of 2025) [2026] KEELC 1283 (KLR)[2026] KEELC 1283 (KLR)27 Feb 2026
- Kigumba & another v Marete & 3 others (Enviromental and Land Originating Summons E030 of 2025) [2026] KEELC 348 (KLR)[2026] KEELC 348 (KLR)26 Jan 2026applied
- Wafula v Angweyi & 3 others (Environment and Land Case 68 of 2017) [2025] KEELC 7985 (KLR)[2025] KEELC 7985 (KLR)19 Nov 2025applied
- Chabari v Kirai & another (Environment and Land Case 51 of 2017) [2025] KEELC 7041 (KLR)[2025] KEELC 7041 (KLR)16 Oct 2025applied
- Gatonye & another v Kamau & another (Environment & Land Case 579 of 2009) [2024] KEELC 6362 (KLR)[2024] KEELC 6362 (KLR)3 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others", Case Analysis (2016). Petition 1 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2016/2/eng@2016-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.