[2018] KEHC 3741 (KLR)

[2018] KEHC 3741 (KLR)

The High Court found that the dispute before the magistrate's court was a nomination dispute, not an election petition, as it arose prior to the declaration of election results and concerned the appellant's eligibility to contest under the PDU ticket. Jurisdiction for such disputes is vested exclusively in the IEBC...

Source-derived case information.

Citation
[2018] KEHC 3741 (KLR)
Parties
Appellant: Anthony Njomo Maina; Respondent: Jane Njeri Kamande; Respondent: Party of Democratic Unity; Respondent: Abdalla Mwaura Chikophe; Respondent: The Independent Electoral and Boundaries Commission
Court
High Court
Court Station
High Court at Garsen
Jurisdiction
Kenya
Case Number
Election Petition 01 of 2018
Procedural Posture
Election Petition Appeal / First Appellate
Outcome
Appeal allowed. Magistrate's judgment set aside. Appellant declared duly elected. Each party to bear own costs.
Legal Topics
Nomination Disputes, Jurisdiction of Election Courts, Party Hopping, Burden of Proof, Costs in Election Petitions
Source Language
en
Election Petitions Constitutional Law Nomination Disputes Jurisdiction of Election Courts Party Hopping Burden of Proof Costs in Election Petitions

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Summary, issues, holding and outcome

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Parties

Anthony Njomo Maina

Appellant

Jane Njeri Kamande

Respondent

Party of Democratic Unity

Respondent

Abdalla Mwaura Chikophe

Respondent

The Independent Electoral and Boundaries Commission

Respondent

Procedural Posture

Election Petition Appeal / First Appellate

Legal Issues

  1. 1 Whether the magistrate's court had jurisdiction to hear a nomination dispute under Article 88(4) of the Constitution.
  2. 2 Whether the magistrate's court erred in finding that the appellant committed an election offence under Section 28 of the Elections Act.
  3. 3 Whether the magistrate's court was correct in declaring the second runner-up as the winner without a recount or scrutiny.

Ratio Decidendi

The High Court found that the dispute before the magistrate's court was a nomination dispute, not an election petition, as it arose prior to the declaration of election results and concerned the appellant's eligibility to contest under the PDU ticket. Jurisdiction for such disputes is vested exclusively in the IEBC by Article 88(4) of the Constitution and Section 4(e) of the IEBC Act. The magistrate's court therefore acted without jurisdiction in entertaining the matter. Furthermore, Section 28 of the Elections Act does not create an offence of party hopping; it merely imposes a time limitation for party membership changes. The finding that the appellant committed an election offence was...

Court Disposition

Appeal allowed. Magistrate's judgment set aside. Appellant declared duly elected. Each party to bear own costs.

Orders

  • The judgment delivered by the magistrate on 18th December 2017 is set aside.
  • Anthony Njomo Maina is declared duly elected as member of County Assembly for Bahari Ward, Lamu County, and a certificate to issue under Section 86 of the Elections Act.