[2018] KEHC 5003 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

ELECTION PETITION APPEAL NO. 1 OF 2018

ESTHER OKENYURI ANYIENI.....................................APPELLANT

VERSUS

MOKUMI EDMOND ANTHONY..........................1ST RESPONDENT

JUBILEE PARTY.....................................................2ND RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.............................3RD RESPONDENT

THE SPEAKER, KISII COUNTY ASSEMBLY...4TH RESPONDENT

(Being an appeal against the judgement and decree of the Honourable V.Karanja,

Senior Resident Magistrate, Kisii Law Courts in Kisii CMCC Election

PetitionNo. 9 of 2017 dated and delivered on 25th January, 2018. )

JUDGMENT

INTRODUCTION

1. Esther Okenyuri Anyieni, hereinafter referred as the appellant filed an appeal against the respondents seeking declarations of setting aside the judgement of the election court presided over by Hon. V. Karanja delivered on 25th January 2018 in Election Petition No. 9 of 2017.

2. The appellant premised the appeal on the following grounds as contained in the Memorandum of Appeal indicated as herein under stated:

i. The learned Trial Magistrate erred in holding that the nomination form by the 2nd respondent superseded Article 193 and Regulation 15 of the Election (Party Primaries and Party Lists) Regulations, 2017.

ii. The learned Trial Magistrate misconstrued the petition presented before her in holding that the 3rd respondent “did not re-arrange the (party) list submitted to it by the 2nd respondent.

iii. The learned Trial Magistrate in her decision dismally failed to appreciate the legal import of the constitutional and statutory legal thresholds which govern the preparation of party lists and which set out the parameters of the (obligatory) legal mandate of the 3rd respondent in the nomination and gazettement of nominees’ names for special seats, in particular:-

(i) Regulation 2 of The Elections (Party Primaries and Party Lists) Regulations, 2017:

(ii) Article 90(2) of the Constitution of Kenya, 2010.

(iii) Sections 27(1) and 34(6A) of the Elections Act, 2011.

(iv) Regulations 26, 55(1) and 55(2) of the Elections (General) Regulations, 2012.

iv. The learned Trial Magistrate erred by failing to appreciate the complementary nature of Article 193(1) of the Constitution of the Republic of Kenya, 2010 and Article 90(2) of the Constitution, Sections 27(1) and 34(6A) of the Elections Act, 2011, Regulations 26, 54, 55(1) and 55(2) of the Elections (General) Regulations 2012.

v. In holding that there were no competing interests between the appellant and the 1st respondent the learned Trial Magistrate misdirected herself and totally misconstrued the tenor, import and purport of Article 177 (1)(b) and (c) of the Constitution.

vi. The judgement of the learned Trial Magistrate is an affront to Article 88(4) (d) of the Constitution of the Republic of Kenya, 2010 in so far as she did not hold that the 3rd respondent had failed to discharge its legal mandate vis a vis the nomination and gazettement of the 1st respondent.

vii. In the circumstances, the learned Trial Magistrate erred in holding that the 1st respondent was duly nominated and that the 3rd respondent discharged its mandate under Articles 90 and 177 of the Constitution of Kenya, 2010, Section 36(8) of the Elections Act, 2011 and Regulations 54, 55 and 56 of the Elections (General) Regulations, 2012.

The appellant prayed for the following reliefs:-

1. This appeal be allowed and the judgement of the learned Trial Magistrate in Kisii CM Election Petition No.9 of 2017 be set aside and/or vacated to the extent that it is therein held that:-

(a) The 1st respondent was duly nominated and gazetted, and,

(b) The 3rd respondent fully complied with the provisions of Articles 90 and 177 of the Constitution of Kenya, 2010, Section 36(8) of the Elections Act, 2011 and Regulations 54, 55 and 56 of the Elections (General) Regulations, 2012

2. Judgment be entered as prayed in Kisii CM Election Petition No.9 of 2017.

3. Costs of this appeal and of Kisii CM Election Petition No.9 of 2017 be awarded to the appellant.

In her complaint the appellant was dissatisfied with the process of nomination conducted by the 2nd Respondent resulting to the 1st Respondent being gazetted as a member of the Kisii County assembly as the same was illegal and invalid. Further, that the said process was in breach of the laid down threshold both in the constitution and the Elections Act.

In answer to the petition before the Election Court the 1st, 2nd and 3rd respondents vehemently denied that there were any irregularities of procedure or breach of the law in which the 1st Respondent got to be nominated by the 2nd Respondent and finally gazzetted as a Member of the County Assembly by the 3rd Respondent.

The learned Trial Magistrate in her judgment considered the affidavit evidence and submissions by each party to the election dispute and held as follows:

· Both Article 193 and Regulation 15 of the Election (Party Primaries and Part Lists) Regulation 2017 have no such requirement that one must be registered voter in the place where they are applying to be nominated and therefore the nomination application form by Jubilee Party cannot supersede the Constitution and written laws since the only requirement provided for under the law is that, one must be a registered voter and the 1st respondent as met this requirement.

· The 3rd respondent did not in any way re-arrange the list submitted by the 2nd respondent and it proceeded to gazette the parties in accordance with section 36(8) of the Elections Act, 2011. From he application forms, the Petitioner applied for different special seat (Youth and Marginalized). There are no competing interests between them so that even if this court revokes Gazette Notice 8380, the Petitioner would not be eligible to be nominated in the slot of the 1st respondent as she had not applied for that position.

Factual Background at the Trial Court

This matter found itself in High Court in the following manner. The 2nd respondent referred as the Jubilee Party was required under the law to nominate a candidate under the category of marginalized group. Constitutionally, for nomination to the County assembly of Kisii, the appellant alleged that by virtue of the fact that she was a member of the 2nd respondent party and being a registered voter with rights to vote at Kenyenya Primary School polling center, she submitted her credentials and testimonials to the 2nd respondent for consideration as member of the Kisii County Assembly (youth category). Further, that her application was considered and approved by the 2nd respondent in its Party list as a nominee. However, the 1st respondent also applied for nomination as a nominated member of Kisii County Assembly, was listed by the 2nd respondent in its Party List and gazetted by the 3rd respondent in the Kenya Gazette Vol.CXIX No. 124 of 28th August, 2017 hence, he was purportedly validly elected as a nominated member of the Kisii County Assembly under the marginalized Party List submitted by the 2nd respondent under Article 177(1) (c) of the Constitution of the Republic of Kenya.

THE PETITION

Through Election Petition No. 9 of 2017 the appellant asked the Election Court in her petition to scrutinize the nomination process in favor of the 1st respondent on the following grounds:-

i. That it was a mandatory requirement by the 2nd respondent that applicants for special seats (marginalized groups) be registered voters for the place they are applying for.

ii. The 1st respondent was not eligible to seek nomination to the Kisii County Assembly because he is the registered as a voter at Stima Members Club Polling Centre within Ruaraka Constituency in Nairobi County.

iii. That according to the 2nd respondent’s nomination rules, the 1st respondent was only eligible to seek nomination to the County Assembly of Nairobi in view of the fact that he was a registered voter at Stima Members Club Polling Centre which falls within Nairobi County.

iv. That Regulation 55 of the Elections (General) Regulations, 2012 requires that Party Lists be prepared in conformity with party rules, hence, the party list prepared by the 2nd respondent was illegal to the extent that it contained the name of the 1st respondent whose application for nomination was itself invalid for offending the 2nd respondents mandatory requirement that applicants including the 1st respondent must be registered voters for the place they are applying for.

v. That the 2nd respondent had no right in law or otherwise to approve the 1st respondents application for nomination as the 1st respondent was in breach of section 34(6) of the Elections Act No. 24 of 2011 and Regulation 35(1) of the Elections (General) Regulations. 2012.

vi. That the 3rd respondent as a commission duly mandated to ensure that the 2nd respondent , in submitting its Party List for Special Seats had complied with its own regulations failed to discharge its statutory mandate as provided for in Rule 21(2) of the Elections (Party Primaries and Party Lists) Regulations, 2017, Section 34(6A) of the Elections Act No. 24 of 2011 and Regulation 55(2) of the Elections (General) Regulations, 2012 and thereby allowed an ineligible candidate, being the 1st respondent to be nominated and gazette.

vii. That the certificate of Compliance issued by the 3rd respondent under Section 34(6A) of the Elections Act No. 24 of 2011 vis a vis the nomination of the 1st respondent was for all intents and purposes a nullity in so far as the same was a seal of approval of a material breach of the 2nd respondent’s regulations governing applications for nomination.

The Petitioner thus prayed that;

a) It be declared that the 1st respondent was ineligible to apply for nomination by the 2nd respondent as a nominated member of Kisii County Assembly and that his nomination by the 2nd respondent in that respect is invalid, null and void ab initio.

b) An order do issue directed at the 3rd respondent to degazette the is respondent’s name as a nominated Member of Kisii County Assembly.

c) It be declared that the petitioner is the 2nd respondent’s duly nominated Member of Kisii County Assembly and that the petitioners name be so gazetted by the 3rd respondent consequent upon which the 4th respondent be ordered to administer oath upon the petitioner as a duly nominated Member of Kisii County Assembly.

d) Costs of the petition be borne by the 1st, 2nd and 3rd respondent.

1ST RESPONDENT’S RESPONSE TO THE PETITION

Anthony Mokumi Edmond the 1st respondent herein opposed the above petition in his replying affidavit dated 4th October 2017. He deposed as follows that ; he duly applied to the 2nd respondent to be nominated as member of county assembly Kisii County under the category of other special interest group and was duly appointed as such having met all the terms and conditions that were laid down by the 2nd respondent. He confirmed that he is a member of the 2nd respondent bearing registration number JP171627 and being a registered voter with rights to vote within the meaning of the Jubilee Party nomination rules 2016 Part II. He further averred that the 2nd respondent was required under Section 35 and 36(1) (f) of the Election Act No. 34 of 2011 to submit to the commission a party list showing the number of nominees in the marginalized group’s list as required under Article 177(1) (c) of the Constitution and that pursuant to regulation 56(2) of the Elections (General) Regulations 2012 regarding the formula for allocation of seats by the commission, the 2nd respondent was entitled to one(1) seat for membership in the County Assembly of Kisii under the marginalized seats category in order to give effect to Article 177(1)(c) of the Constitution. Hence, the 3rd respondent was duty bound under Section 36(8) of the Elections Act No. 24 of 2011 to select the candidate who will represent the marginalized group and adhere to the priority in the list that was submitted to it by the 2nd respondent on the basis of proportional representation of the membership of the County Assembly of Kisii, as provided under Article 90(1) of the Constitution. That the 2nd respondent duly submitted its party list to the commission on 19th July 2017 pursuant to Section 34(4) and (6) and according to the said party list, he was listed as number one (1) on the said party list under marginalized category while the petitioner was listed as number two (2). Therefore, he was in priority position having been listed as no. one (1) on the list, pursuant to Section 36(8) of the Elections Act No. 24 of 2011 which provides that the commission is duty bound to select members of special seats in the order given by the Political Party. Thereafter, the commission published its final list on 23rd July 2017 in the Daily Nation and Standard News Papers. On 21st July 2017, the commission published a public notice in both the Daily Nation and Standard Newspaper by which aggrieved persons were invited to file complaints before the commission for purpose of settlement of any dispute pursuant to Article 88(4) (e) of the Constitution and section 74(1) of the Elections Act No. 24 of 2011. However, the petitioner did not file any complaint with the commission within the stipulated time and as a result, on 28th August 2017 vide Gazette Notice Vol.CXIX No. 8380 at page 4995 he was gazetted as nominated member of County Assembly of Kisii County representing the 2nd respondent for marginalized groups.

2ND RESPONDENT’S RESPONSE TO PETITION

The 2nd respondent opposed the above petition in its replying affidavit dated 18th October 2017 clarifying that the nomination of members to the various seats was guided by the law and was done in a fair and justifiable manner as provided by law, party regulations and best practice. The 2nd respondent explained that an application for consideration for a nomination slot is not guarantee that such an applicant must be nominated and that the list published by the 3rd respondent is the actual compliant list having been amended by the 2nd respondent and resubmitted in compliance with the contents of the memorandum /recommendations. The 2nd respondent further averred that reference to any prior lists was therefore incorrect as such were initial drafts sent for the input of the 3rd respondent which input was sent to the 2nd respondent with suggested corrections to be effected on it which was done. It was therefore the 2nd respondents’ case that all categories of persons required by law to be nominated were factored in and the nominations process was therefore an inclusive affair where all the special interest groups and necessary categories were considered and nominated. The 2nd respondent further contended that there was no agreement at any instance that particular nominees would be from specific places or particular persons would be listed in any particular order as alleged by the Petitioner in the Petition and that no evidence has been led by the Petitioners to show how the 2nd respondent acted to her detriment in submitting the list of nominees to the 3rd respondent. Lastly the 2nd respondent averred that the petitioner never challenged the party list at the Political Parties dispute tribunal, IEBC dispute resolution committee or the at Party Internal Dispute Resolution mechanism as is the normal procedure.

THE 3RD RESPONDENT’S RESPONSE TO THE PETITION

Salome Oyugi the 3rd respondent’s Political Parties Manager opposed the above petition vide a replying affidavit dated 17th September 2017 averring that the 2nd respondent submitted its party list to the 3rd respondent on 19th July 2017, pursuant to Section 34(4) and (6) and according to the said party list; 1st respondent was listed as number one (1) on the said party list under marginalized (ethnicity) category, that the Petitioner by the said list was listed as number two (2) hence, the 1st respondent was in priority position having been listed as number (1) on the list, pursuant to Section 36(8) of the Elections Act No. 24 of 2011 which provides that the 3rd respondent is duty bound to select members of special seats in the order given by the political party. Thereafter, the 3rd respondent published its final list on 23rd July 2017 in the Daily Nation and Standard Newspaper. In addition to this, the 3rd respondent on 21st July 2017, published a public notice in both the Daily Nation and Standard Newspaper by which it (3rd respondent) invited aggrieved persons to file complaints before the Commission for purposes of settlement of any disputes pursuant to Article 88(4) (c) of the Constitution and Section 74(1) of the Elections Act No. 24 of 2011. However, the Petitioner did not file any complaint with the Commission and in absence of any complaints the Commission in adherence to the priority of nominees as submitted in the party list (under Section 36(8) of the Elections Act No. 24 of 2011); the Commission accordingly allocated the seat to the 1st respondent. As a consequence thereof, the 1st respondent was on 28th August 2017 vide Gazette Vol. CXIX, Gazette Notice No. 8380, at page 4995, gazetted as a nominated member of County Assembly of Kisii County representing the 2nd respondents (marginalized groups) hence, he was selected in the manner provided for in the Constitution and the Elections Act No. 24 of 2011 hence it was the 3rd respondent’s case that he was properly, legally and constitutionally designated as a special seat member to give effect to Article 177(1) (c) of the Constitution.

The appeal before this court was agreed to be canvased by way of written submission and an opportunity for Learned counsels to highlight the salient features of the appeal.

SUBMISSIONS BY THE APPELLANT

The appellant’s counsel Mr. Mogusu Nyamweya submitted by identifying the issues of determination as follows:-

a. Was the 1st respondent’s nomination to the county assembly of Kisii by the 2nd respondent compliant with the party rules, the elections act and the constitution?

b. Can a voter registered in a different county be legible for nomination by his political party to a county assembly of another county?

Counsel submitted that the answer to the above issues rested in the documents found at pages 15, 16-18 and 22 of the Record of Appeal and pages 8-14 of the Supplementary Record of Appeal. That the 2nd respondent, in pursuit of its party constitution and nomination rules generated a ‘Nomination Application Form’ as a policy document and instrument vide which they were to receive applications from members who wished to be considered for nomination to the party’s party list for consideration by the 3rd respondent for nomination once elections were completed. Counsel further submitted that the nomination application form had seven (7) sections to be filled by applicants, which were:-

1. Personal details

2. Education level

3. Place registered as voter

4. Proceedings by regulators and offences under the law

5. Eligibility

6. Contribution to jubilee party and

7. Mandatory documentation.

Counsel further submitted that Part 3 of the form had very clear and mandatory guidelines and notice to applicants as it read: - ‘Yourapplication is ONLY valid for the place you are registered as a voter’

That the 1st respondent indicated that he was registered in Kisii county and highlighted ‘BONCHARI’ constituency as the constituency he was registered as a as voter in a ward called ‘BOGIAKUMU’.His name was presented as number 1 to the 3rd respondent for nomination as a member of county assembly under article 177 of the constitution. However, it was the appellant’s counsel submission that he presented evidence at page 22 of the record of appeal, from the 3rd respondent’s data that the 1st respondent was registered in NAIROBI COUNTY, RUARAKA CONSTITUTENCY at a polling center called STIMA MEMBERS CLUB and that none of the four (4) respondents CONTROVERTED or even CHALLENGED that piece of evidence.

Hence, it was counsels submission that the 1st respondent LIEDto the 2nd respondent on the application form regarding the place where he was registered as a voter, the 2nd respondent did not cross-check compliance by the 1st respondent with its own party rules and regulations particularly on the VALIDITY of the 1st respondent’s application for nomination and that the 3rd respondent did not counter-check to ensure that the list the 2nd respondent had presented complied with the 2nd respondent’s own party rules and the instruments generated in those rules. Therefore, it was counsel’s submission that the 1st respondent was not eligible for nomination for the seat of county assembly to KISII COUNTY ASSEMBLY; but would be eligible for nomination to the party’s list for NAIROBI COUNTY.

Counsel further submitted by highlighting the law regulating and guiding matters to do with nomination of candidates to party lists as follows:-

1. Article 82(1) (b) which conditions parliament to enact legislation to provide for matters of nomination candidates.

2. The Elections Act.

3. Section 27(1) of the Elections Act, which stipulates that every party to submit its nomination rules to the electoral commission at least six months before the nomination of candidates.

4. Section 27(2A) of the Elections Act commands the electoral commission to, upon receipt of the party nomination rules, review the rules to ensure compliance with the prescribed regulations and issue a certificate of compliance or require the political party to amend the rules to ensure compliance within fourteen days.

5. Section 34(6) makes it mandatory for political parties and the commission to ensure that, ‘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. That is a statutory obligation.

6. Article 90 (2) of the constitution, which mandates the commission to be responsible for the conduct and supervision of elections for seats provided under article 177 of the constitution.

It was therefore counsel’s submission that both the JUBILEE PARTY and IEBC failed in their statutory and constitutional obligation to ensure that the 1st respondent complied with the rules of the party while stating his place of registration as a voter. Consequently, counsel submitted that the nomination of the 1st respondent was INVALID and the 4th respondent should be notified as such. Counsel further submitted that one of the activities of Political Parties under Article 177(b) and (c) of the Constitution is to come up with party lists for persons to be nominated. That the people who serve in the county assembly of a county, as members of that county assembly are, by dint of article 177(1) (a) of the constitution ‘members elected by the registered voters of the wards,...hence, the composition of a county assembly MUST be in accordance with the sovereign will of the cumulative registered voters of a county. It was further submitted that it is the will of those registered votes, as expressed through the election of their elected members that determines how many persons each political party is to nominate to that county assembly. As Article 177(2) of the Constitution, expressly states:- ‘The members contemplated in clause (1)(b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that county by each political party ..’

Lastly, it was submitted that the 1st respondent’s issues and interests are found at Ruaraka in Nairobi, hence, he can only associate himself with the issues and interests of the people of Nairobi County and does not share any interests or representable issues with the registered voters of KISII County so as to purport to come to their county and represent them. Counsel urged the court to allow the appeal with costs.

1ST RESPONDENTS SUBMISSIONS

Mr. Kaburi for the 1st respondent submitted that the 2nd respondent had only one slot to nominate a member to Kisii County Assembly in the marginalized category and in order for a candidate to be nominated as such one had to apply and meet all the laid down requirements as laid down by the respective political party, IEBC and the Constitution of Kenya 2010. Hence, the name of the 1st respondent was submitted together with other five names to the 2nd respondent wherein the 1st respondent was listed as number one on the list of 5 other candidates. It was counsel’s submission that the 1st respondent had priority to the other candidates, the 3rd respondent (IEBC) had only one responsibility in fulfilling the constitution which was to gazette the names of candidates as shown on priority by the party hence, the 3rd respondent did not have any power to rearrange the said names. It was further submitted that the 1st respondent having been listed as number one and the appellant herein being listed as number 2 on the list of Jubilee party, the 3rd respondent did no wrong in gazetting the 1st respondent as the duly nominated member of county assembly Kisii County to represent Jubilee party since his name had priority to that of the petitioner. That the 1st respondent applied to be nominated by the 2nd respondent under the marginalized category whereas the petitioner applied to be nominated under youth category. Thus the petitioner and the 1st respondent did not have competing interests in their applications for nomination hence, the trial magistrate made a sound decision that there are no competing interests between the petitioner and the 1st respondent so that even if this court revokes the gazette notice No.8380, the petitioner could not be eligible to be nominated in the slot of the 1st respondent as she had not applied for that position.

Counsel further submitted that the Trial Magistrate addressed her mind fully on Article 90 (1) of the Constitution, Article 193 (1) of the Constitution, Article 177 (b) (c ), Article 177 (1) (c) of the Constitution and regulation 54, 55 and 56 of the elections (General) Regulations 2012 and held that whether or not the 1st respondent is a registered voter in Kisii county was not an issue for consideration before a party nominates a candidate for the position of member of county assembly.

Counsel further submitted that the 1st respondent in his response to the petition and his submissions before the lower court proved that he was a duly registered voter at Bonchari Constituency, Bogiakumu ward within Kisii Countyhence, he adequately answered the argument by the appellant that the 1st respondent was not registered as a voter in Kisii county; which was not a requirement for nomination. That the 1st respondent applied to be nominated as member of county assembly in the marginalized category whereas the appellant had applied to be considered under youth category which category the Jubilee party did not have a slot. Hence, Jubilee party had one slot to nominate a member of county assembly in Kisii county under the category of marginalized and only the 1st respondent had applied to be considered under that heading and was duly considered and his name submitted to the 2nd respondent having priority over the other names since it appeared as No. 1 on the Jubilee party list. Counsel thus submitted that the trial magistrate made a sound judgement when she made a finding that revocation of the gazette notice No. 8380 will not automatically hand over the nomination slot held by the 1st respondent to the appellant as she had not applied for that category and that the 3rd respondent was not mandated to rearrange the list that had been submitted to it by Jubilee party. Lastly, counsel urged the court to award him costs to the tune of Kshs. 250,000/= (Kenya Shillings Two Hundred and Fifty Thousand) for the 1st respondent in the lower court and Kshs. 400,000 for the appeal on grounds that litigation is an expensive exercise and has a consequence of costs to the successful party. Counsel thus urged this court to uphold the lower court judgment and dismiss the instant appeal in its entirety.

3RD RESPONDENT’S SUBMISSIONS

On ground 2 of the Memorandum of Appeal counsel for the 3rd respondent stated that the 1st respondent was listed as number (1) under the marginalized ethnicity category and by the same list the appellant was listed as number (2) hence it was counsel’s submission that the roles played by the 2nd and 3rd respondent are separate and distinct as, under Section 36(8) of the Elections Act No. 24 of 2011 the 3rd respondent is bound under Section 36(8) to select the candidate who will represent the marginalized group as per the list submitted to it by the 2nd respondent. It was submitted that the 3rd Respondent is not in any way involved or concerned with the arrangement of members of a political party or of the 2nd Respondent in the party list and that its role is to select the candidate in the order given by a political party and on the basis of proportional representation of the membership of the County Assembly of Kisii. Counsel relied on the case of AdenNoor Ali v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR, at page 11/19the superior court held that; “The IEBC is therefore required to ensure that the party list complies with all the stipulated prerequisites…” the superior court further held that “It will be observed at this stage that, the process of nomination curves out separate and distinct roles to be played by the IEBC and the political parties”.In the same case the court relied on the Supreme Court case of Moses Mwicigi & 14 others vs Independent Electoral and Boundaries Commission (2015) Eklr; where it was held that: - the duty of IEBC is to ensure that the party lists submitted comply with the relevant provisions of the law. The Supreme Court further held that “Nowhere does the law grant powers to the IEBC to adjudicate upon the nomination processes of a political party: such a role has been left entirely to the political parties. The IEBC only ensures that the party list, as tendered, complies with the relevant laws and regulations.

Counsel thus urged this court to hold that the trial magistrate did not misconstrue the petition.

On grounds 1, 3 and 4, 6 and 7 of the memorandum of appeal, counsel submitted that the 3rd Respondent articulated and placed before the trial court the relevance of statutory, regulatory provisions of the electoral laws and the constitution concerning the election dispute herein. That in its replying affidavit; the 3rd demonstrated its compliance with the Sections 34(4), 35, 36(1) and (8); of the Elections Act No. 24 of 2011; Regulations 56(2) of the Elections (General) Regulations 2012, Articles 177 and 90(1) of the Constitution. That the 3rd Respondent demonstrated that it fulfilled its mandate in selection of candidates who represent marginalised groups and adhered to the priority list in accordance with Article 90(1) of the Constitution, which requires proportional representation, by use of party lists, in election of candidates. Hence, it was counsel submission that the learned Trial Magistrate correctly interpreted the law in her judgement, by articulating Articles 193, 177 (b) (c) of the Constitution, Regulation 15 of the Election (party primaries and party lists) Regulations 2017 where it was held that “both Article 193 of the Constitution and Regulation 15 do not have requirement that one must be a registered voter in the place where they are applying to be nominated”Counsel relied on Aden Noor Ali v Independent Electoral (supra) at page 9/10,held where it was held, ‘pursuant to Section 34 of the Elections Act, a political party…under Article 97(1)(a)(b) shall submit to the Commission a party list in accordance with Article 97(1)(c) of the Constitution.’It was further held that, “Once the party list is complete, Section 34 of the Elections Act and the regulations specify that it shall be submitted to the IEBC, which shall ascertain whether it complies with the provisions of the Constitution and the Election laws and Regulations.’

Hence it was Counsel’s submission that the learned trial magistrate correctly interpreted the law in her judgement when she held that the “3rd Respondent fully complied with the provisions of Articles 90 and 177 of the Constitution and Section 36(b) of the Elections Act, 2011 and Regulations 54, 55 and 56 of the Elections (General) Regulations of 2012.

On ground 5 counsel quoted Article 177(1) (b) and (c) of the Constitution which provides that the county assembly shall consists of a number of special seats that are necessary to ensure that no more than two-thirds of its membership are of the same gender. Counsel stated that the appellant was listed as No. 2 in the “youth category” while the 1st Respondent was listed as No. 1 in the “marginalised ethnicity category” and submitted that the learned Trial Magistrate correctly held in her judgement that the they did not have competing interests. It was counsel’s further submission that the trial magistrate correctly evaluated Section 36(8) of the Elections Act and Article 177(b) (c) of the Constitution in her judgement. Counsel quoted section 36(8) of the Act which provides that the Commission shall draw from the party list special seat members in the order given by the party and submitted that the learned Trial Magistrate correctly interpreted the law in her judgement when she held that the “3rd Respondent fully complied with the provisions of Articles 90 and 177 of the Constitution and Section 36(b) of the Elections Act, 2011 and Regulations 54, 55 and 56 of the Elections (General) Regulations of 2012. Lastly, counsel urged the court to dismiss the appeal with costs to the 3rd respondent as the same lacked merit.

When the appeal came before me on 2/7/2018 for highlighting of submissions , Mr. Nyamweya for the appellant adopted his written submission emphasising that the determination of the appeal rests on the interpretation of Article 177 (1) (b) (c) relating to the special seats that political parties are given an opportunity to nominate persons to the county assemblies. That under Article 177 (1) (b) (c) the issue the court will be answering is whether Article 177 (i) (b) can nominate persons to represent marginalized groups, people with disabilities etc from persons registered as voters outside of the counties they are nominated to. He urged the court to agree with him that only voters registered in a county are eligible to apply and be considered for nomination in the county they are registered as voters. That a voter outside a county cannot qualify to represent the marginalized groups as that was the intention of representation in the constitution. Counsel relied on Article 259 (1) of the Constitution and submitted that one purpose of Article 10 of the Constitution which sets out the National values include devolution of power sharing, protection of marginalized groups and integrity. According to counsel, if the political parties import representatives from other counties then they kill the spirit of devolution of powers and they end up failing to protect the marginalized in that county. On the 2nd value is that of integrity, counsel further submitted by referring to page 22 of the Record of Appeal which showed that the 1st Respondent was a registered voter in Nairobi. That at page 6 of the supplementary record of appeal, it was stated at part III “only for the place you all registered as a voter”. It was counsel’s submission that the 1st respondent lied that he was registered in Kisii County Bonchari Constituency. On fundamental freedoms in the Bill of Rights, counsel urged the court to find that Article 177 (1) restricted the nominees to people of the said counties. It was submitted that there was no single document from I.E.B.C, there was no voter register. On 3rd respondent’s duty, he submitted that its duty was to ensure the Political Parties complied with the parties list as per the regulations hence 3rd respondent failed in that duty as they should have begun from registration. Counsel also referred to the case of Ali Noor (supra) where the court proceeded to interpret Articles 97 (1) (a) (b) on the duties of I.E.B.C. According to counsel, the nomination form was developed as a policy document to guide the nomination process and should have been complied with as it raises legitimate expectations. He urged the court to set aside the interpretation of Section 177 (1) (c).

Mr. Kaburi for the 1st respondent relied on his written submissions and submitted that the 1st respondent was a voter registered in Kisii County Bonchari Constituency which is within Kisii County and no evidence had been tabled before court to challenge this. Counsel further submitted that the 2nd respondent could only nominate one person under the marginalized category. Miss Kisa for the 3rd respondent submitted that Article 177 (1) (c) the Political Party is required to give a list with the names and other particulars and the category the persons applied to be nominated. That the Jubilee party was entitled to one seat under the marginalized groups. She explained that the formula is under Section 56 (2) of the Elections General Regulations of 2012. Hence, the Jubilee party submitted the list to the 3rd Respondent. That Kisii had one position of the marginalized group, it had no position for the youth group and that is why the 1st Respondent was gazetted. That the appellant applied for the youth category not marginalized category and as Mr. Kaburi submitted there is no evidence in this court and the lower court to show that the applicant applied for the position of marginalized category and therefore court held at paragraph 33 that the 2 persons had no competing interests. On the issue that I.E.B.C slept on its job and the duties delegated to it under the Constitution, she submitted that under Article 90(2) (a) the Political Parties are to submit a list to the Commission and the Commission is to conduct the elections as per the party lists in accordance to section 36 (8) of the Elections Act. Hence according to counsel gazette Notice No.8380 is valid as it was published after the Commission observed its mandate and could re-write the list as submitted by the 2nd Respondent. Counsel further submitted that the Trial Magistrate did not misconstrue and relied on the Aden Noor which stated that the categories should all be grouped together. She further submitted that under the Article it does not state anywhere a person applying for nomination in a particular seat must be registered in that county. That the Elections Act does not preclude anyone for vying for nomination under the categories just because he is not registered in that area. On the issue of I.E.B.C investigating that the 1st Respondent was not a registered voter in Kisii county, counsel submitted that the mandate of the Commission under Section 36(8) of the Elections Act and that they are not to make inquires on where the applicants are registered but to work on the lists produced by the political parties. She urged the court to dismiss the appeal with costs to the 3rd Respondent.

Mr. Nyamweya in reply to the above responses submitted that the duty of I.E.B.C doesn’t stop on receiving the list. He referred to Article 90, Article 177 (1) (c) and Article 260. That the Constitution states who are the marginalized and there is Article 24 of the Constitution where age is mentioned. Thus counsel submitted that what was presented as marginalized group is a cluster.

DETERMINATION

Having read and considered all the affidavits evidence of both the petitioner, the respondents, their respective annexures, the written submissions, the judgment of the election court, the grounds in the memorandum of appeal and the written submissions by each counsel, the issues that present themselves for determination in this appeal are;-

1. What is the legal mandate of the 3rdrespondent in the nomination and gazettement of nominees’ names for special seats?

The Independent Electoral and Boundaries Commission is established by Article 88 of the Constitution.88(4) provides ,“The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for-

a) The continuous registration of citizens as voters

b) The regular revision of the voters’ roll

c) The delimitation of constituencies and war

d) The regulation of the process by which parties nominate candidates for elections;

e) The settlement of electoral disputes relating to or arising from nominations but excluding election Petitions and disputes subsequent to the declaration of election results;

f) The registration of candidates for election

g) Voter education

h) The facilitation of the observation, monitoring and evaluation of election

i) The regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;

j) The development of a code of conduct for candidates and parties contesting elections; and

k) The monitoring of compliance with the legislation required by Article 82 (1) (b) relating to nomination of candidates by parties.”

According to Section 34(6A) of the Election Act IEBC is tasked to supervise the compilation of Party List. Section 34(6A) of the Election Act provides, “upon the receipt of a political party list under sub-section (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 require the political party to amend the party list to ensure such compliance failing which the Commission shall reject the list.”. Section 34 (8) &, (9) provides that “A person who is nominated by a political party under subsections (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. (9) The party list shall not contain a name of a candidate nominated for an election. Article 177(1) (b) and (c) of the Constitution relates to elections by way of nominations and Sections 34 and 36 of the Elections Act which provide for party list. Looking at the pleadings and submissions by counsels there is no doubt that the law was followed since the Jubilee party list was submitted to IEBC which formed the basis of the nomination leading to the dispute before court. My understanding of Section 34 is that IEBC will receive the lists of the nominated persons as per the party list. It is not the duty of IEBC upon receipt of the party list to investigate the nomination application documents submitted by an applicant to its political party. An applicant is at liberty to file a complaint on the same and at that point the commission can deal with the matter as mandated . There was no complaint received by IEBC on the nomination of the 1st respondent from the appellant. The 3rd respondent thereafter published the nomination of the 1st respondent as per the list provided, which indicated that the 1st respondent was listed as no. 1 under the marginalised ethnicity category and the appellant was listed as no. 2. the list. The roles played by IEBC and the political parties are separate and distinct. I find that the Trial Magistrate did not err in her finding that the 3rd respondent did not in any way rearrange the list submitted to it she analysed the relevant parts of the law on nomination and made a correct finding based on the Election Act and Constitution Articles 90 & 177 (b) (c).

Was there a competing interests between the appellant and the 1st respondent with reference to Article 177 (1) (b) and (c) of the Constitution.

Article 177 Constitution provides, “Membership of county assembly (b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender; (c) the number of members of marginalized groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; and (2) The members contemplated in clause (1)(b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that county by each political party under paragraph (a) in accordance with Article 90”.The Trial Magistrate referred to the nomination applications E0A2filed by the appellant and AMEI filed by the 1st respondent and observed that the appellant and the 1st respondent were members of Jubilee party. She noted that the borne of contention between the petitioner and the 1st respondent was that the 1st respondent was not a registered voter in Kisii but a voter in Ruaraka Constituency, Nairobi County. She perused the search result from IEBC on EOA5 and noted that the 1st respondent had been categorized under the marginalized group and he was no. 1 on the list and the petitioner had been categorized under the youth group and was no. 2 in the list. Article 177 (b) (c) provides for special seats which the appellant and the 1st respondent applied for. The 2 categories are not similar they are different and therefore the Trial Magistrate was right in observing that the 2 had no competing interests. Jubilee was entitled to one slot and the 3rd respondent was to gazette the person Jubilee party had nominated as no. 1, who was from the marginalized group. The 3rd respondent discharged its legal mandate vis a vis the nomination and gazzettement of the 1st respondent.

2. Whether the nomination form by the 2nd respondent superseded Article 193 and Regulation 15 of the Election (Party Primaries and Party Lists) Regulations, 2017.

The Trial Magistrate made a finding that Article 90 provides for allocation of party seats which shall be on the proportional representation by use of party lists and that the same is read with Article 177 which provides for membership of County Assembly. In considering this 3rd issue, there is need to consider if the appellant and the 1st respondent’s nomination by the 2nd respondent in compliance with the Constitution and the Elections Act? Who is eligible for nomination as MCA?

Section 25 of the Elections Act 2011 mirrors Article 193 of the Constitution which provides for qualifications for election as member of county assembly it states, “Unless disqualified under clause (2), a person is eligible for election as a member of the county assembly if the person-

a. Is a registered voter;

b. Satisfies any educational, moral and educational requirements prescribed by this constitution or an Act of Parliament; and

c. Is either

i. Nominated by a political party; or

ii. An independent candidate supported by at least five hundred registered voters in the ward concerned”

The 2nd respondent (Jubilee party) was required under Section 35 and 36(1) (f) of the Election Act No. 34 of 2011 to submit to the commission a party list showing the number of nominees in the marginalized group’s list. Section 34(6) of the Elections Act, 2016 provides that, “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”. According to the Jubilee Party nomination rules 2016, for a person to qualify for nomination one had to be a citizen of Kenya, registered party member, is eligible to stand for any elective or selective position in accordance with the laws of Kenya, is a registered voter, had signed the party pledge. The appellant has emphasised that there is a part of the application form on part of registered voter which states, “Yourapplication is ONLY valid for the place you are registered as a voter” .It was argued that the said provision does provide that for a person to be nominated he/she must be a registered voter in that particular county. It was the Trial Magistrate’s finding that the said rule cannot supersede the Constitution and Election laws.

Section 36 of the Election Act gives guidelines on the allocation of special seats, It provides, “(7) For purposes of Article 177(1) (b) of the Constitution, the Commission shall draw from the list under subsection (1) (e), such number of special seat members in the order given by the party, necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender. (8) For purposes of Article 177(1)(c) of the Constitution, the Commission shall draw from the list under subsection (1)(f) four special seat members in the order given by the party.[emphasis mine] The appellant alleges that having been listed as no. 2 on the list, pursuant to section 36(8) of the Elections Act No. 24 of 2011 which provides that the commission is duty bound to select members of special seats in the order given by the Political Party. The order of the list is not disputed. The 1st respondent argues that the order did not matter as he had sought nomination under the marginalized category whereas the appellant applied to be nominated under youth category. I find the Trial Magistrate was right in finding that the order on the list would not have in any way favoured the appellant as she and the 2nd respondent had sought nomination for different seats and thus had no competing interest as she had applied for different special seat (Youth and Marginalized). Hence, there is no need for this court to revoke Gazette Notice 8380, the Petitioner would not be eligible to be nominated in the slot of the 1st respondent as she had not applied for that position.

It is clear from both the Constitution and the Elections Act that IEBC is responsible for the conduct and supervision of elections in the party lists under Articles 97(1) (c) and 98 (1) (b) as well as those of the members of the County Assembly under Article 177 (1) (b) and (c). Further Article 193 provides that,

(1) Unless disqualified under clause (2), a person is eligible for election as a member of a county assembly if the person—

(a) is registered as a voter;

(b) satisfies any educational, moral and ethical requirements prescribed by this Constitution or an Act of Parliament; and

(c) is either—

(i) nominated by a political party; or.

The said Article does not provide that a voter who is to be nominated must be from the said county. The Article refers to a registered voter. The 1st respondent demonstrated that he was a registered voter, his political party confirmed the same he was not disqualified and therefore he was a proper candidate for nomination. If Parliament intended to specify that the voter must be from a specific county, then Parliament could have stated so specifically. Article 90 (1) provides that, “Elections for the seats in Parliament provided for under Articles 97(1) (c) and 98 (1) (b), (c) and (d), and for the members of county assemblies under 177 (1) (b) and (c), shall be on the basis of proportional representation by use of party lists.

(2) The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that—

(a) each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1), within the time prescribed by national legislation;

Under Article 90 (2) IEBC is to ensure that the political party submits the nomination list within the prescribed time. This is what the 3rd respondent did and it cannot be faulted on this. I therefore find that the Trial Magistrate did not err in holding that the nomination form by Jubilee party cannot supersede the Constitution and the written laws. The rules of any political party cannot supersede the supreme law the Constitution and the Election laws. All in all the appeal fails, it is dismissed.

Who bears the costs?

The Civil Procedure Act at Section 27(1) provides that costs must follow the event unless the court for good reason orders otherwise. This is in line with Section 84 of the Elections Act which states; “An election Court shall award the costs of and incidental to a petition and such costs shall follow the cause. Such costs are to follow the event and the Court has a broad jurisdiction to determine the costs.” According to Rule 30(2) of the Election (Parliamentary and County Election) Petition Rules 2017, the award of costs is discretionary. The said provision provides that, “(1) The Court shall, at the conclusion of an election petition, make an order specifying –

a) the total amount of costs payable; and

b) the person by and to whom the costs shall be paid.”

Further

“30(1)….

(2) when making an order under sub rule (1) the court may --- disallow any costs which may in the opinion of the court have been caused by vexatious conduct, unfounded allegations or unfounded objections on the part of either the petitioner or the respondent and impose the burden of payment on the party who has caused an unnecessary expense, whether such party is successful or not in order to discourage such expense.” In Election Petition No. 2 of 2017, Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 Others, it was held, “It is up to the election court to determine whether a party would be awarded costs or not and in doing so the court must be guided by the principles of fairness, justice and access to justice.”I note that the lower court in exercising its discretion did not award costs. Each party was directed to bear its own costs. I will not penalise the appellant to pay costs to the respondents either, it’s only fair that each party bears its own costs. It is so ordered.

Dated signed and delivered this 31st Day of July 2018.

R. E. OUGO

JUDGE

Read and Delivered on the 1st day of August, 2018

D.S. Majanja

Judge- High Court

At Kisii Law Courts

In the presence of

Mr. Ng’eno for Mr. Nyamweya For the Appellant

Mr. Kaburi For the 1st Respondent

No appearance For the 2nd Respondent

Limo Court/ Clerk