[2023] KEMC 1 (KLR)

Bukura & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition E007 & E006 of 2022 (Consolidated)) [2023] KEMC 1 (KLR) (2 February 2023) (Judgment)

Neutral citation: [2023] KEMC 1 (KLR)

Republic of Kenya

In the Mandera Law Courts

Election Petition E007 & E006 of 2022 (Consolidated)

PW Wasike, SRM

February 2, 2023

Between

Abdiwelly Haji Bukura

1st Petitioner

Suban Ahmed Abdinoor

2nd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

United Democratic Movement

2nd Respondent

Abdow Bishar Maalim

3rd Respondent

Judgment

1. This is consolidated election petition of Election Petition No. E006 of 2022 and E007 of 2022 both respectively dated 1/10/2022 filed simultaneously on 6/10/2022. The 1st and 2nd Petitioners respectively contest the election by way of nomination of the 3rd Respondent to the Mandera County Assembly.

Petitioners’ case 2. Per the petition, affidavit in support of the petition and the affidavit evidence as well as the written submissions as orally highlighted; it is the petitioners’ contention that per the law 2nd Respondent party list submitted by the 1st respondent and published in the Standard Newspaper on 27/7/2022 the petitioners were nominated to represent PWDs and were listed as second and 3rd Respectively in the party list under the marginalized group nominees for Mandera County Assembly.

3. That the 2nd Respondent party list submitted to the 1st Respondent and published in the Standard Newspaper on 27/7/2022 does not include the name of the 3rd Respondent as one of its eight nominees. That the 1st Respondent vide gazette Notice no. 10712 of 9/9/2022 gazetted the list of nominated members of the county Assemblies and in that gazette notice the 3rd Respondent who was not a member of the 2nd Respondent at time of submitting the Party list to the 1st respondent and the subsequent publication of Party List on 27/7/2022 appears as no.1 in the marginalized list representing the youth in Mandera County Assembly. That this led to unlawful alteration of party list for Mandera County Assembly as the petitioner’s names are omitted from gazette notice of 9/9/2022. That the gazettement was fraudulent and illegally procured by 3rd Respondent to prejudice of the petitioner contrary to 1st Respondent Gazette notice no. 6378, and further in violation of article 10, article 38(3) (c), 47(2) 88(4)(e) of the constitution 2010.

4. That the 3rd respondent was sworn in as member of the Mandera County assembly on 22/9/2022. The Petitioners seeks to revoke the fraudulent gazettement of the 3rd Respondent as nominee to Mandera County Assembly and compel the 1st Respondent to gazette the correct list of the 2nd Respondent contemplated under article 90(1)(2) and 177(2) of the Constitution 2010 hence the prayers:a.A declaration that the nomination of the 3rd Respondent was not conducted in accordance with the Constitution, Elections Act, the Political parties Act and all applicable laws therefore invalid, null and void.b.A declaration that the gazettement of the 3rd Respondent on 9/9/2022 as a nominee for the United Democratic Movement party in Position no.1 under the marginalized list youth category for mandera county Assembly be declared null and void and of no effect whatsoever, the 3rd Respondents having been fraudulently included in the gazette notice without having been a member of the party nor appeared in the party list submitted to and approved by the 1st Respondent.c.The fraudulent and illegal nomination of the 3rd Respondent to the Mandera county assembly be revoked.d.The 1st Respondent be ordered to cancel and remove Abdow Bishar Maalim from position no.1 as being nominated to the Mandera County assembly under marginalized list youth category and instead reinstate the Petitioner to position no. 3 under the marginalized List to the Mandera county Assembly to represent the category of Person with Disabilities (PWD) as submitted by the 2nd Respondent and approved by the 1st respondent in the original party list and uploaded on the IEBC Portal.e.An Order directing the 1st Respondent to correct gazette notice no. 10712 of 9/9/2022 and publish an amended gazette notice reflecting the name of the Petitioners as submitted by the 2nd Respondent and approved by the 1st Respondent in the original party list and uploaded on the IEBC Portal.f.The 1st and 3rd respondents be ordered to pay the costs of the petition in any eventg.Any other relief as the court shall deem fit to grant.

1st Respondent’s Case 5. The 1st Respondent in its Response to the Petition dated 4/11/2022 in principle states that in line with its mandate, it conducted and supervised elections herein per the constitution, Elections Act and all enabling laws.

6. 1st Respondent insisted that in respect of the issues raised by the petitioner its role was limited to ensuring that the lists submitted by political parties comply with the Constitution and other applicable electoral laws in respect of the gazettement of the final lists submitted by political parties. That the 1st Respondent had no role whatsoever in how parties arrive at their party list save for compliance with the constitution electoral laws and its own nomination rules.

7. That the 2nd respondent submitted its initial party list and upon review by the 1st Respondent pursuant to article 90 of the constitution section 34 Elections act 1st Respondent found that the list was not compliant and invited the 2nd Respondent to amend it. That the 2nd Respondent submitted their amended list on 23/7/2022 in accordance with regulation 54(3) of the Elections (General) Regulations 2017 and regulations 26(3) of the Elections (Party Primaries and Party List) Regulations 2017.

8. That the 1st respondent in allocation of seats governed by article 90 certified the list of 23/7/2023 which it used to administer the nomination. That the petitioners and 2nd Respondent are relying on a list that was not submitted in accordance with regulations 54(3) of the Elections (General) Regulations 2017 and regulations 26(3) of the Elections (Party Primaries and Party List) Regulations 2017.

9. That it followed the order of priority of the list as submitted and approved as per article 90 and section 36(8) of the Election Act and went ahead to gazette the list of all nominees including the 2nd Respondent per list dated 20/7/2022 in compliance with article 177(1)(b) per gazette notice no. 10712 vol CXXIV no. 186 dated 9/9/2022 and prayed:i.That the petitioner failed to prove that the 1st Respondent did not comply wit the constitution of Kenya, the elections Act, 2011 and relevant statutory guidelines and regulations governing elections and nominations in allocation of nomination slots in mandera county assembly.ii.A declaration that the Respondent discharged its constitutional mandate as enshrined in the constitution, Elections Act 2011 and the Regulations made thereunder.iii.A determination that no right of the petitioner has been infringed.iv.The petition presented before court lacks merits and should be dismissed with costsv.Such other orders as the court deems fit.

2nd Respondent’s Case 10. The 2nd Respondent in its response as well as the replying affidavit and submissions stated that it carried out nominations for party list members for the various elective seats among them the MCA in compliance with the Constitution, Elections Act, UDM party constitution and part five of the UDM Elections and Nomination Rules 2021.

11. That it submitted its party membership list to the Registrar of Political parties (RPP) and in compliance to RPP letter dated 16/5/2022. That on 17/6/2022 the RPP wrote a letter to 2nd Respondents SG informing him that she had verified the party list submitted and returned to the 2nd Respondent two copies of certified copies of party list in electronic format.

12. That on 15/8/2022 the 2nd respondent SG was informed that the party list that had been submitted approved and published by the 1st Respondent had been altered to include name of the 3rd Respondent without authorization of the leadership of the 2nd Respondent.

13. That the 3rd Respondent was not a member of the 2nd Respondent (UDM) party until 11/9/2022 which was two days after gazettement of the list of nominated members of the County Assemblies. That the 3rd respondent did not pay any registration or nomination fees as required under the party Election Nomination Rules. That it occurred to the 1st Respondent that there was a different list in records of 1st respondent which was different from the list originally submitted and approved. The different list was a forgery.

14. That the 2nd Respondent did not submit any application for consideration for nomination.

15. That RPP in a letter dated 14/9/2022 upon inquiry by the 2nd Respondent confirmed that the 3rd Respondent was registered as a member of UDM party on 11/9/2022 at 1. 47pm by one Calvin William Habwe Chitwa under party membership no UDM 2022009001 as a regular member and he had digitally resigned from Jubilee party using USSD code (*509#). That it was impossible for the 3rd respondent to have been lawfully registered as a member of the 2nd Respondent and become eligible for nominations herein after elections yet the deadline for submission of party lists to RPP was on 11/6/2022.

16. That the alteration of the list disenfranchised the petitioners due to acts and omissions of 1st and 3rd Respondents hence the prayers in the that the Petition be allowed as prayed with costs being borne by the 1st and 3rd Respondents.

3rd Respondent’s Case 17. As per the 3rd Respondent’s response to the petition dated 13/12/2023 and the Replying affidavit sworn on 13/12/2022; the 3rd Respondent insisted that he is a bonafide life member of the 2nd respondent and has a life membership card. That he made application to be considered for party list nomination as a member of Mandera County Assembly representing youth.

18. That he is not an official of the 2nd respondent and was not given an opportunity to scrutinize the party list submitted to the RPP. That any non-inclusion must have been an oversight or deliberate attempt by malicious officials of the 2nd Respondent to deny him his recognition as a duly registered member of the UDM and the benefits that accrue thereto.

19. That he is not aware of the precise particulars of when the party list was submitted, and by who to the 1st Respondent.

20. The 3rd respondent denied that the 1st Respondent was satisfied with the list and that the said list was the list published in the newspapers and uploaded on IEBC website. That he is aware that party list preparation is a preserve of political parties and IEBC usually adopts the party lists submitted by the political party. That his name was submitted to IEBC by 2nd Respondent after having been duly nominated to represent the youth.

21. That selection of candidate from the party list submitted to IEBBC is done strictly in line with provisions of article 90 and 177 of the Constitution, section 36, 37 of Elections Act, and Regulation 55 of the Elections (General) Regulations 2012. That the 3rd respondent was not involved in the process.

22. That he is a resident of Mandera County, and a young person who represents the interests of the youth. That he was properly nominated by 2nd respondent and duly gazetted by 1st Respondent. That he is not aware of any alteration of the 2nd Respondent’s party list.

23. The 3rd Respondent raised issue that the Petitioner failed to deposit the security for costs within time stipulated and also failed to plead the petition in manner envisaged by the law and at hearing will raise a preliminary objection to be determined in limine and so jurisdiction of the court is denied.

24. That the petition is bad in law fatally defective as its premised-on assumption that since the petitioner’s name was among names submitted by the party he is automatically entitled to nomination even head of persons who appeared before his name in the party list. He prays for orders that:a.Mandera County Assembly was duly constituted following the publication of the gazette notice no 10712 of 9/9/2022. b.The 3rd Respondent was validly elected by way of nomination to the mandera county assembly.c.The 3rd Respondent was not in breach of and did not contravene the provisions of the constitution, Elections Act or any statute.d.Petition lacks merit and should be dismissed ande.The Petitioner should bear costs of the petition.

Issues for determinationThe 1st respondent and the 2nd Respondent filed respective lists of issues for determination and which were adopted by the parties herein. 1st Respondent’s Issue:Whether the 1st Respondent discharged its constitutional mandate as enshrined in the Constitution, Elections Act, 2011 and the Regulations made thereunder by gazetting the nomination list submitted by the Political Party;

2nd Respondent’s issues, also adopted by the Petitioners:i.Whether the 3rd Respondent was a bonafide member of the UDM Party at the time of publication of the party List by the 1st Respondent in the Standard Newspaper of 27/7/2022. ii.Whether the 3rd Respondent was a nominee of the 2nd Respondent party under marginalized category to represent the youth in the list published by the 1st respondent on 27/7/2022 in Standard Newspaper and the list uploaded in the IEBC Portal.iii.Whether the 1st respondent can alter and amend the party list submitted to it by the 2nd respondent without authorization by the political party.iv.Whether the nomination of the 3rd Respondent was conducted in accordance with the constitution, Elections Act and Political parties Act.v.Whether the nomination of the 3rd Respondent to the Mandera County Assembly is null and void.vi.Whether the honorable court can order the 1st Respondent to publish the correct party list as submitted to it by the 2nd Respondent.vii.Whether the 1st Respondent should be ordered to correct Gazette Notice No. 10712 of 9/9/2022 and publish an amended Gazette notice reflecting the names of the Petitioners as submitted by the 2nd Respondent and approved by the 1st respondent in the original party list and uploaded on the IEBC website.viii.Whether the court should recommend the prosecution of the 3rd Respondent for perjury and forgery.ix.Whether the 1st and 3rd Respondent should be ordered to pay costs of the petition.

25. The court on 19/12/2023 directed that the petition be disposed by way of written submissions. It was agreed that all parties to ensure they have filed and served their submissions by 24/1/2023. This was complied with and highlighting of the written submissions proceeded on 27/1/2023 virtually. 26. The court has read and considered the submissions filed, the authorities and the documents respectively referred to by the parties in their supporting or replying affidavits as filed in this petition as the case may be and will refer to them as appropriate in the course of the judgment.

27. I note that the 2nd Respondent filed a list of 9 issues for determination and which issues the Petitioner adopted entirely. The 1st respondent filed a list with a single issue for determination. Parties agreed that the court to distil the issues for determination in this petition was filed. The court does adopt all the issues as filed.

28. The 1st and 2nd issues per the list filed by the 2nd Respondent are actually the background to the case and may substantially determine petition. I will handle the two issues together. I will seek to answer these two issues on the uncontested basis of all parties’ averments and submission that the issue of nominations is internal party affairs subject to party constitution and the Elections Act and the Political parties Act and the constitution of Kenya 2010. Whether the 3rd Respondent was a bonafide member of the UDM Party at the time of publication of the party List by the 1st Respondent in the Standard Newspaper of 27/7/2022. Whether the 3rd Respondent was a nominee of the 2nd Respondent party under marginalized category to represent the youth in the list published by the 1st respondent on 27/7/2022 in Standard Newspaper and the list uploaded in the IEBC Portal.The two issues above are (inter)related and can safely be disposed of together.i.Section 38A of the Political Parties Act provides for two Methods of conducting party nominations; (a) direct party nomination method; or (b) indirect party nomination method.ii.Section 34 (8) of the Elections Act provides that; “A person who is nominated by a political party under subsection (2), (3) and (4) shall be a person who is a member of the political party on the date of submission of the party list by the political party.”iii.Section 38C Political Parties Act deals with Participation of Registered members in party nominations and provides that(1)A registered member of a political party shall be entitled to participate in the nominations conducted by the political party.(2)A political party that intends to conduct political party nominations under this Act shall use a certified register of members for the nominations.(3)A political party that intends to conduct political party nominations under this Act shall apply in writing to the Registrar for a certified copy of the register of members at least twenty-one days before the date of the nominations.(4)The Registrar shall issue the political party with a certified copy of the register of the political party’s members within seven days after the application under subsection (3).(5)A political party shall not allow any person who is not a registered member of the political party to participate in the party nominations.(6)Notwithstanding the provisions of subsection (5), a person may only participate in the nominations of a coalition political party if such person is a registered member of a party forming the coalition political party.

29. The above provisions no doubt outline and restrict that only a registered member of a political party is entitled to participate in the political party nominations, and further that a certified copy of the register of members shall be obtained from the registrar of political parties at least twenty-one days before the date of the nominations and this is the list to be used in the political party nomination exercise.

30. The basic issue in this petition is whether the 3rd Respondent as at the time of nomination was registered member of the 2nd Respondent (UDM Party). This can be established first by looking at the party constitution on issue of membership. I also proceed on the assumption that there was no contention as to the constitution of UDM party or to the interpretation of any of the relevant sections of the party constitution and relevant rules thereto.

31. Chapter 4 of the party constitution deals with membership.i.upon reading of Article 4. 1 I note that membership of UDM shall be open and can be done upon application to the Brach executive Committee. The application can be manually or using electronic platforms through e-citizen platform of USSD *207*100# or any other mobile phone USSD as may be advised by the party. That before certificate of membership is conferred all members shall pay the prescribed membership fees.ii.Article 4. 2 provides for categories of membership subject to payment of membership fees i.e. Ordinary membership (no fees), life member (as prescribed) Bronze (as prescribed), silver (as prescribed), gold (as prescribed), platinum (as prescribed), and group membership.iii.Article 4. 3 provides inter alia rights of members to take part in elections by voting and being eligible for party and National Elections at all levels upon nomination.iv.Article 4. 5 provides for maintenance of Members register with details of the individual member. The register shall be kept in both electronic and physical format.

32. The 2nd Respondent in the Response to the Petition as well as the replying affidavit stated that it carried out nominations in accordance with the Constitution, the Elections Act, the UDM Party Constitution and Part Five of the UDM Elections and Nomination Rules 2021 for Nominations for Party List Members for the various elective seats among them the position of Member of County Assembly of Mandera.

33. It is the position of the 2nd Respondent that on 11th June 2022 they submitted the Party Membership List to the Registrar of Political Parties as per the Registrar of Political Parties’ letter of 16/5 /2022. That on 17/6/2022, the Registrar of Political Parties wrote a letter to the 2nd Respondent’s Secretary General informing him that she had verified the Party List that had been submitted and returned to the 2nd Respondent two (2) copies of the certified copies of the Party List in electronic format. That on or about 15/8/2022, the 2nd Respondent’s Secretary General was informed that the Party List that had been submitted, approved and published by the 1st Respondent had been altered without the authorization of the leadership of the 2nd Respondent to include the name of the 3rd Respondent.

34. The 2nd Respondent vehemently denies that the 3rd Respondent was a member of the United Democratic Movement Party until the registration on 11/9/2022 two (2) days after the gazettement of the list of Nominated Members of the County Assemblies by the 1st Respondent. The 2nd Respondent insists that the 3rd Respondent is not a registered member of the UDM Party and did not pay any registration or nomination fees as required under the Party’s Elections and Nomination Rules.

35. The 3rd Respondent in his response to the Petition dated 13/12/2023 and in the 3rd Respondent’s Replying affidavit as well as in the written submissions as highlighted on 27/1/2023 insist he is a registered voter and hails from Mandera County in Mandera South Constituency Kutulo ward. That he is a duly registered and paid up member of UDM. He referred to membership card annexed and marked ABM-1 and that he was also issued life membership card (ABM2) on 11/5/2022.

36. The 1st Respondent in the Response to the petition, replying affidavit and written submissions as highlighted on 27/1/2023 insists that it issued guidelines as published in gazette notice no. 6378 vol. CXXIV no.101 dated 3/6/2022. That consequently the party lists were received on or before 25/6/2022 which was within the 45 days before the general elections as per section 35 of the Elections Act. That pursuant to Regulations 54(8) Elections General Elections Regulations 2012 the 1st respondent published the final party list as received from the parties in the standard newspaper and subsequently pursuant to Article 90 of the constitution and section 34 Elections Act undertook review of the submitted list. That the 1st respondent consequently picked the person who was listed as per the party list of 2nd Respondent submitted through their letter dated 22/7/2022.

Courts Findings 37. The Supreme Court in Raila Odinga and Another v. IEBC S.C. Petition No. 5 of 2013 held that:“…a petitioner should be under obligation to discharge the initial burden of proof before the respondents are invited to bear the evidential burden. The threshold of proof should in principle, be above the balance of probabilities, though not as high as beyond-reasonable-doubt. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondents bear the burden of proving the contrary.”The court has duly considered the above and finds that the petitioners have discharged the initial burden of proof above the balance of probabilities, though not as high as beyond-reasonable-doubt, by proving that the 3rd Respondent is not in the certified list of party members that was certified by the RPP for use in nominations per letter dated 17/6/2022 produced and marked as annexure ‘DO-5’ in the 2nd Respondent’s Replying affidavit, and was not in the list published by 1st Respondent in the Standard Newspaper on 27/7/2022.

38. The letter from RPP certified that the 3rd Respondent registered as a member of UDM vide USSD after party nominations were long closed. The membership cards produced by the 3rd respondent have been disowned by the 2nd Respondent.

39. Indeed, pursuant to Section 107 (1) of the Evidence Act “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Further, Section 109 of the Evidence Act provides that “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.”

40. With the above facts as clarified by the 2nd Respondent, the incidence of burden of proof properly shifts to the 3rd Respondent to proof to the standard required that he was a duly registered and paid up member or life member of the 2nd respondent at the time of nomination as he claims.

41. I have keenly read the replying affidavit of the 3rd Respondent and the UDM Party constitution as well as the nomination rules of the UDM party; I concur with the submissions by the 2nd respondent that the 3rd respondent must have more evidence to support his life membership status in addition to the membership card that he has produced in evidence. He is at least required to show that he is a paid-up life member. This is a fact that is particularly within his knowledge and it’s not too much or illegal to demand from him. The failure to do so as provided in section 108 Evidence Act on leads to the inescapable finding that the 3rd Respondent has not proved that he paid any annual contributions and or membership fees even at once or that he was so exempted under the party constitution.

42. The basic issue herein is whether the 3rd Respondent was a fully paid up member of UDM party as at the time of the alleged nomination per gazette notice of 9/9/2022 or as at the time of publication of the party list on 27/7/20222 in the Standard Newspaper. Noting that the 2nd respondent availed evidence as per letter from RPP that the 3rd Respondent joined the 2nd respondent on 11/9/2022 after nominations were closed and even gazettement of the nominated MCAs had been done on 9/9/2022, it would have been clearer if not easier if the 3rd Respondent availed evidence of when he was admitted as a member of the UDM Party by any of the methods prescribed under the party constitution.

43. A consideration of the response and the reply of the 3rd respondent show that he does not in any way fault the mandate and the role of the RPP in this matter. However his submissions and assertions that the letter from ORPP should not be relied upon but that records must come from 2nd respondent to proof that he is not a member of the party is misconceived. I suppose the 3rd Respondent has not familiarised himself with the provisions of Section 34 of the Political Parties Act which provides for functions of the Registrar of Political Parties among many others to:i.verify and make publicly available the list of all members of political parties;ii.keep and maintain a register of members of registered political parties;iii.ensure and verify that no person is a member of more than one political party and notify the Commission of the findings;iv.certify that an independent candidate in an election is not a member of any registered political party;v.certify that the names appearing in a party list are the names of members of the political party presenting the party list;vi.regulate political party nominations in accordance with this Act;vii.investigate complaints received under this Act;

44. Even if the 2nd Respondent believes that shadowy figures of the UDM party are maliciously targeting him, the RPP under the law is deemed a neutral party. I find no reason why the RPP should also be prejudiced against him and if he so rightly believes RPP is prejudiced against him, he should invoke the dispute resolution mechanism under the Act. The foregoing position was reinforced in the case of George Omondi Okoth vs. Independent Electoral & Boundaries Commission & 7 Others [2017] eKLR where the court opined that; that the definitive proof of membership or lack thereof of the 2nd Respondent’s political party membership is by the Registrar of Political Parties.

45. In my view if the 3rd respondent was dissatisfied with his non-inclusion in the published party membership list presented to and certified by the RPP for use in political party nomination, there are ample legal procedures to be invoked by the aggrieved party. The 3rd Respondent has not shown any effort in this respect by way of a Complaint with the Political Parties Disputes Tribunal to challenge the list published. Membership in political party nominations is such a cardinal issue that any reasonable person seeking nomination under a political party would at least try to verify that he is on the certified list of members of the political party. Information on party membership is readily available to any member of the public who so wish to verify. In any event the political parties Act does not permit membership in more than one party. It is so strange that the 3rd Respondent in the submissions seemed to deny that the person listed in Isiolo County Jubilee party list is not the 3rd Respondent yet all the names and ID number are for the 3rd Respondent. How the 3rd Respondent was a member of two political parties is well known to him but all in all its illegal. Furthermore, during oral highlighting of submissions, the court when it sought clarification from the counsel if the 3rd Respondent has taken any (legal) action against IEBC or RPP after being served with the petition documents; it was evident no action has been taken and the explanation given that the proceedings herein are time bound is not a satisfactory explanation. The issue of membership in the party is so crucial to the 3rd Respondent perhaps more than to any other party herein since he is the one who stands the greatest prejudice. He was nominated and his nomination is under serious contention and challenge on the very issue of party membership.

46. As it stands now, annexure ‘DO-13’ of the 2nd Respondent’s affidavit in Response to the Petition where the Registrar confirmed;i.That Mr. Abdow Bashir Maalim of ID No. 29941449 was registered as a member of the UDM on 11th September 2022 at 1. 47 pm.ii.His party Membership Number is UDM2022009001 and is registered as a regular member.iii.He was registered through Membership registration portal by a Mr. Calvin William Habwe Chitwa.iv.He personally resigned digitally using the USSD Code (*509#).”Are facts which are uncontroverted and have legal and practical implications:i.the registration of the 2nd Respondent as a member of the UDM Party was done way past the General Elections of 9th August 2022 whilst Section 35 of the Elections Act requires the 2nd Respondent to submit its Party List to the 1st Respondent at least forty-five (45) days before the date of the General Election.ii.the 3rd Respondent registered as a regular member and is not a Life member of the UDM as he claims.iii.He resigned from his original party Jubilee on 11th September 2022.

47. Rule 5 under Part Three of the UDM Elections and Nomination Rules at provides for the rules and procedure for nomination of a member of the County Assembly. Rule 5(b) provides for instance the documentations to be furnished by a member upon application and among them a duly filled Nomination Form signed by two (2) members (proposer and seconder) of the UDM both of whom must be registered voters in the electoral areas.

48. The 3rd Respondent’s proposers, Mr. Ibrahim Mohamed Alio and Mr. Hassan Derow have not been proved to be members of the UDM Party therefore could not propose and second the 3rd Respondent as a nominee to the Mandera County Assembly.

49. This court therefore finds that it has been proved to the required standard by the 2nd Respondent that the 3rd Respondent was not a member of the UDM Party at the time of publication of the Party List in the Standard Newspaper of 27/7/2022 or even as at the gazettement of nominated members of the County Assembly on 9/9/2022 by 1st Respondent.

50. The net and logical effect is that the 3rd Respondent per the law and the Party constitution was not eligible to participate in the UDM party nominations as a member and or as a candidate for nomination to the Mandera County Assembly.

51. In fact, it would not matter even if it was the 2nd Respondent who may have by mistake or otherwise submitted the name of the 3rd Respondent on the UDM party nomination list. Such will be illegal as it contravenes the clear provisions of the law and party constitution.

52. I also note and it was never addressed by the 1st and 3rd respondent about the names and order of priority in the marginalised category in the Standard newspaper of 27/7/2022. They are listed as follows:1. Bishar Hussein Farah -Youth2. Suban Ahmed Abdinoor PWD3. Abdiweli Haji Bukura - PWD4. Khalida Dahir Adan- Woman5. Mohamed Hassan Mohamed-worker6. Sahara Adan Mohamed - Worker7. Mohamednoor Ismail Mohamed – Youth8. Mulki Abdulahi Mohamud – Ethnic Minority

53. Consequently on the two issues of : whether the 3rd Respondent was a bonafide member of the UDM Party at the time of publication of the party List by the 1st Respondent in the Standard Newspaper of 27/7/2022, and, whether the 3rd Respondent was a nominee of the 2nd Respondent party under marginalized category to represent the youth in the list published by the 1st respondent on 27/7/2022 in Standard Newspaper and the list uploaded in the IEBC Portal; I find that he was a not bonafide member of the UDM Party at the time of publication of the party List by the 1st Respondent in the Standard Newspaper of 27/7/2022 and was not a bonafide a nominee of the 2nd Respondent party under marginalized category to represent the youth in the list published by the 1st respondent on 27/7/202.

54. With the findings of fact and law in respect of the two issues above; I find that they also sufficiently and conclusively resolve the issues no iv and v i.e. whether the nomination of the 3rd Respondent was conducted in accordance with the constitution, Elections Act and Political parties Act and whether the nomination of the 3rd Respondent to the Mandera County Assembly is null and void.

55. Going per the response and reply to the petition it was the position of the 1st Respondent and which is the legal position is that it has no role in generation of the party list, the content and order of priority of party nominees in the list. Section 28(1) and 28(2) of the Elections Act was cited. It deals with submission of party membership lists and provides as follows:(1)A political party that nominates a person for an election under this Act shall submit to the Commission a membership list of the party —(a)in the case of a general election, at least one hundred and twentydays before the date of the election; and(b)in the case of a by-election, forty-five days before the date of the by election.(2)The Commission shall publicize the membership lists as received from political parties.

56. Section 34 of the Elections Act deals with Nomination of party lists members and is to the effect that;(1)The election of members for the National Assembly, Senate and county assemblies for party list seats specified under Articles 97 (1) (c) and 98 (1) (b) (c) and (d) and Article 177 (1) (b) and (c) of the Constitution shall be on the basis of proportional representation and in accordance with Article 90 of the Constitution.(2)A political party which nominates a candidate for election under Article 97 (1) (a) and (b) shall submit to the Commission a party list in accordance with Article 97 (1) (c) of the Constitution.(3)A political party which nominates a candidate for election under Article 98 (1) (a) shall submit to the Commission a party list in accordance with Article 98 (1) (b) and (c) of the Constitution.(4)A political party which nominates a candidate for election under Article 177 (1) (a) shall submit to the Commission a party list in accordance with Article 177 (1) (b) and (c) of the Constitution.(4A) In the case of a person nominated pursuant to Article 177(1) (c) of the Constitution, the party list shall include a certification in the manner prescribed by the Commission.(5)The party lists under subsection (2), (3) and (4) shall be submitted in order of priority. (6) The party lists submitted to the Commission under this section shall be in accordance with the constitution or nomination rules of the political party concerned.(6A) Upon receipt of the party list from a political party under subsection (1), the Commission shall review the list to ensure compliance with the prescribed regulations and —(a)issue the political party with a certificate of compliance; or(b)require the political party to amend the party list to ensure such compliance failing which the Commission shall reject the list. (6B)For purposes of subsection (6A), the Commission may, by notice in the gazette, issue regulations prescribing guidelines to be complied with in preparation of party lists. (7) The party lists submitted to the Commission shall be valid for the term of Parliament.

(8)A person who is nominated by a political party under subsection (2), (3) and (4) shall be a person who is a member of the political party on the date of submission of the party list by the political party.

(10)A party list submitted for purposes of subsection (2), (3), (4) and (5) shall not be amended during the term of Parliament or the county assembly, as the case may be, for which the candidates are elected

57. The point of reference which is the gist of the current consolidated petitions is the gazette notice no. 10712 Vol CXXIV no 186 dated 9/9/2022 which every party herein agrees to its final determination of persons as gazetted thereon effectively stand elected as reiterated by the supreme Court in Moses Mwicigi & 14 Others vs Independent Electoral and Boundaries & 5 Others [2016] eKLR. In this gazette notice at Page 7069 for Mandera county -009 under marginalised list the following are listed as nominates under UDM:1. Abdow Bishar Maalim- Youth2. Sokorey Maalim Isaakow- Special Interest3. Bishar Hussein Farah – Youth

58. It is evident that UDM was entitled to 3 seats for nomination under the marginalised list category. A look at the list of party nominee under this category as listed under paragraph 52 of this judgement (per Standard Newspaper dated 27/7/2022) no doubt show obvious differences not only as to the names of the nominees but also the order of priority under this category as published in the Standard newspaper of 27/7/2022 from that appearing in the gazette notice no. 10712 Vol CXXIV no 186 dated 9/9/2022.

59. I find glaring contradictions in the response, reply and submissions of the 1st respondent when compared to the reality as to the persons gazetted as nominees under the marginalised category under UDM party in Mandera County.

60. I have keenly looked at the reply of the 1st Respondent particularly at EX IEBC 2 and note that there is a list said to have been submitted by the 2nd Respondent to 1st respondent vide a letter dated 20/7/2022 where in the list printed on 23/7/2022 under marginalised group nominee to the county assembly for Mandera County lists Abdow Bishar Maalim- Youth, Sokorey Maalim Isaakow- no Special category, Bishar Hussein Farah – worker among others.

61. What is interesting and which the 1st respondent didn’t care to clarify is that this list in which the 3rd Respondent appears is said to have been received by the 1st Respondent on 23/7/2022 yet the list published as per the Standard newspaper of 27/7/2022 the names and order of priority published by 1st Respondent is different. The 1st respondent very broad and generalised response that it relied strictly on the list and order of priority per the list submitted by 2nd respondent on 23/7/2022 in allocation of nomination seats; and that as such the 1st Respondent complied with the constitution, the law and relevant regulations in the nomination now in dispute did not make the issue any clearer. I find the 1st Respondent’s position is contrary to the facts as evident in the subject nomination. There is no dispute to the legal position that the 1st respondent cannot alter and or amend the party list submitted to it by the 2nd respondent without authorization by the political party. That issue is beyond argument yet the facts show the list was amended before being gazetted o 9/9/2022 contrary to the law. The 1st Respondent therefore did not comply and or did not ensure compliance with the Constitution of Kenya , the law and relevant regulations and to the party constitution in the nomination herein.

62. Section 83 of the Elections Act which provides:“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”It is clear that the 1st Respondent’s non-compliance with the Constitution and the law did materially and substantially affect the validity of the election by way of nomination in respect of marginalised categories slots to which the 2nd respondent was entitled to in the Mandera County Assembly:i.First a person whom the court has found was not eligible to participate in the nominations as a voter or as a nominee under the UDM party ended up being gazetted as a nominee and sworn in as a member of the Mandera County Assembly.ii.Secondly the order of priority and the persons nominated per the party list of nominees was not strictly honoured contrary to the Elections laws and jurisprudence which is now settled. As it stands now, it is a fact that the marginalised category of PWD nominees to which UDM party was entitled to are not at all represented in the Mandera County Assembly. In National Gender and Equality Commission vs. The IEBC And Another [2013] eKLR at paragraph 50 held that :“The Party Lists submitted to the Commission under Section 34(6) of the Election Act shall be in accordance with the Constitution or the nomination rules of the Party concerned. This role does not extend to directing the manner in which the lists are prepared as these are matters within the jurisdiction of the parties…..In the case of Imelda Nafula Wanjala vs. IEBC [2013] eKLR the court held that;“Under the provisions of Article 177 of the Constitution and Section 34 of the Elections Act, the Respondent was required to nominate persons on the basis of priority from the list submitted to it prior to the elections and it could only come and consider other lists under Section 37(2) of the Constitution once the original list was exhausted. A failure on its part to act in accordance with these provisions would be irregular and in breach of the law.”iii.Even if by any dint of imagination, the 2nd Respondent did forward the name of the 3rd Respondent as its nominee yet he was not a bonafide member of the party as at time of the nomination then IEBC was bound to reject his nomination. Nevertheless, even the non-rejection by the 1st Respondent in any event only begets a nullity in the nomination of 3rd Respondent as per section 34(8) Elections Act.

63. All the above dispose issues number iii, iv and v per the 2nd respondent’s list of issues as well as the 1st respondents’ sole issue in its list of issues.

64. On whether the court should recommend the prosecution of the 3rd Respondent for perjury and forgery using the powers under section 87 of the Elections Act, I note this matter proceeded by way of written submissions. The court did not have the opportunity to thoroughly scrutinize the documents in issue in the lenses of establishing a criminal offense, and neither did it have the advantage of expert to assist it determine if indeed the documents are forgeries and that the 3rd respondent is culpable. In this judgment I have not made any definitive and conclusive findings on the authenticity of the particular documents in issue submitted by the 3rd Respondent save to have made the overall finding from the facts and the law. In that respect I find it unsafe to delve into this issue of forgery and perjury in this judgment. I believe the matter can be properly initiated and better pursued in the well-established criminal justice system process than through this election court process. The aggrieved parties are all at liberty to lodge formal complaints to the relevant agencies for intervention as appropriate.

65. Issues no vi, and vii i.e. on whether the court can order the 1st Respondent to publish the correct party list as submitted to it by the 2nd Respondent; and whether the 1st Respondent should be ordered to correct Gazette Notice No. 10712 of 9/9/2022 and publish an amended Gazette notice reflecting the names of the Petitioners as submitted by the 2nd Respondent and approved by the 1st respondent in the original party list and uploaded on the IEBC website. I start with Section 75 Elections Act on County election petitions which provides that1. …(1A) A question as to the validity of the election of a member of county assembly shall be heard and determined by the Resident Magistrate's Court designated by the Chief Justice.(2)A question under subsection (1) shall be heard and determined within six months of the date of lodging the petition.(3)In any proceeding brought under this section, a court may grant appropriate relief, including—(a)a declaration of whether or not the candidate whose election is questioned was validly elected;(b)a declaration of which candidate was validly elected; or(c)an order as to whether a fresh election will be held or not.

66. It was the submissions of the Petitioner and the 2nd Respondent that nomination and subsequent gazettement of the 3rd Respondent as a member of the County Assembly of Mandera vide Gazette Notice No. 10712 is a nullity in law as it was not done in compliance with the Constitution and the electoral laws, a position this court has found in the affirmative.

67. I was urged by the Petitioner and the 2nd Respondent that this Court has the inherent jurisdiction to order the 1st Respondent to gazette the correct names of the members of the UDM Party elected by nomination in accordance with the Party List as submitted to the IEBC and published in its website. That the 1st Respondent should therefore be ordered to publish the correct Party List as submitted to it by the 2nd Respondent and in order of priority as the names appear.

68. The 1st Respondent submitted that the court should find that he was duly gazetted by the 1st Respondent, has assumed office and is now well into sittings of the assembly and that the court should not disturb the status quo.

69. The 1st Respondent adopted the assertion in the submissions that it complied with the law and discharged its mandate in the nomination of the 3rd respondent from the 2nd respondent party list.

70. As I found out, the nomination of the 3rd respondent was not in compliance with the Constitution, the relevant election and nominations Laws and regulations and the party constitution. The only issue that need serious attention is the fact that as per the list of persons who are now nominated, and gazetted on 9/9/2022 and sworn in i.e. Abdow Bishar Maalim- Youth, Sokorey Maalim Isaakow- Special Interest, Bishar Hussein Farah – Youth.

71. In the list as published in Standard newspaper on 27/7/2022 legally the persons entitled to the nomination in order of priority are:Bishar Hussein Farah -YouthSuban Ahmed Abdinoor PWDAbdiweli Haji Bukura - PWDKhalida Dahir Adan- WomanMohamed Hassan Mohamed-workerSahara Adan Mohamed - WorkerMohamednoor Ismail Mohamed – YouthMulki Abdulahi Mohamud – Ethnic Minority

72. UDM was allocated 3 seats under special category of marginalised per gazette notice of 9/9/2022; then it follows that the following three people would have stood ‘elected’ by nomination upon the gazettement on 9/9/2022: Bishar Hussein Farah -Youth, Suban Ahmed Abdinoor PWD, Abdiweli Haji Bukura - PWD

73. In the current petition I note that only the nomination of Bishar Abdow Maalim is challenged while the nomination of Sokorey Maalim Isaakow who appears on the gazetted nominated MCA as no.2 is not though it was said that she was nominated under the wrong category . It also appears that the nomination of Bishar Hussein Farah is not contested. This means that of the three slots available for the 2nd Respondent, only one slot is legally factually available to filled up upon the nullification of the nomination of the 3rd Respondent as held in this judgement.

74. In the circumstances and pursuant to section 75(3) Elections Act, I find that this court has jurisdiction to make orders including: as to,i.whether the 3rd Respondent was validly elected,ii.a declaration of which candidate was validly elected; oriii.an order as to whether a fresh election will be held or not.

75. I am not convinced that the jurisdiction of the court in this petition too wide to cover the whole nomination list of nominees by UDM to the Mandera County Assembly as strenuously submitted by the petitioners and the 2nd Respondent. If the petitioners and the 2nd Respondent were aggrieved by the nomination of any other person(s) in addition to the 3rd Respondent then nothing stopped them from instituting an election petition and to seek appropriate orders against them as they did agsonst the 3rd Respondent. (see Ben Njoroge & Another vs IEBC and 2 others [2013 eKLR). No adverse orders can issue from this court against a person who is not party to the proceedings . In any Section 75(A) of the Elections Act provides thata question as to the validity of the election of a member of county assembly shall be heard and determined by the Resident Magistrate's Court designated by the Chief Justice.

76. Consequently, and pursuant to section 75(3) of the Elections Act, I hereby declare that the Abdow Bishar Maalim was not validly elected and his election is hereby nullified.

77. As to who is validly elected, I have looked at the publication in the Standard newspaper of 27/7/2022 which shows the party nomination priority listing of (i) Bishar Hussein Farah -Youth, (ii) Suban Ahmed Abdinoor PWD, (iii) Abdiweli Haji Bukura – PWD. I note that Bishar Hussein who is listed no.1 is already nominated and his nomination is not contested here. Then the next person in the order of priority is Suban Ahmed Abdinoor.

78. Consequently, and pursuant to section 75(3) I hereby declare that Suban Ahmed Abdinoor was validly elected.

79. Further and pursuant to section 34(10) of the Elections Act as read with section 75(3) Elections Act, I find and hold that the Party List as publicised in the standard Newspaper of 27/7/2022 is the valid party list for the 2nd Respondent as required under section 34 of the Elections Act. Any other list save as provided in this judgement in respect of Sokorey Maalim Isaakow(whose election has not been contested) is found null and void. This list shall be the list available for use by the 2nd Respondent in the event vacancies arise under the marginalised category in the Mandera County Assembly.

80. Pursuant to paragraphs 75 and 79 of this judgement it follows that a necessary order is needed to enable the implementation of the orders in paragraph 76 and 78 above but preserving the nomination of Sokorey Maalim Isaakow whose nomination was not contested as noted above.

81. I hereby direct the 1st Respondent to issue forthwith and publish a gazette notice electing Suban Ahmed Abdinoor to the County Assembly of Mandera to represent PWD under the marginalised category.

82. Section 86(1) Elections Act provides that an election court shall, at the conclusion of the hearing of an election petition, determine the validity of any question raised in the petition, and shall certify its determination to the Commission and the Speaker. Consequently, the notice to issue forthwith to the Commission and the Speaker Mandera County Assembly is duly notified.

83. Looking at the nature of the proceedings herein and issues that came up for consideration which I find to be of public interest as it concerns the nomination of marginalised category of persons in the Mandera county Assembly; the court directs that each party will bear own respective costs in respect of both petitions.

84. I appreciate all the respective parties’ counsels in this matter for cooperating with one another and the court to ensure expeditious, fair and just determination of the consolidated petitions.

JUDGEMENT SIGNED, DATED AND READ VIRTUALLY VIA TEAMS PLATFORM THIS 2ND FEBRUARY 2023P.W. WASIKESenior Resident MagistrateIn the presence ofCourt Assistant ……………………..For the Petitioner ……………………..1st Respondent ……………………..2nd Respondent ……………………..3rd Respondent …………………