[2013] KEHC 5609 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO 329 OF 2013

IMELDA NAFULA WANJALA ……………………………………………….PETITIONER

VERSUS

INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION ………. RESPONDENT

JUDGMENT

The petitioner’s case as set out in her petition dated 24th June 2013 is that she was on the TNA party list for nomination to Nairobi County. She was the 6th female on the list. When the IEBC published the list of nominees on 18th May 2013, her name was at number 12, the 6th female.

She contends that following the disputes that arose from the publication of the lists, an amended list was published on 21st May 2013. Her name was missing from this list, replaced by one Agnes Njoki Waithaka.

The petitioner contends that the said Agnes Njoki Waithaka was not in the first/original list submitted by TNA to the 1st respondent, nor was she qualified to be nominated as she had stood for elections and lost in the TNA party nominations for Kayole Ward.

The petitioner states that she lodged complaint No. IEBC/DRC/PL/195/2013 but her complaint was dismissed without any or due consideration. She asserts that the decision of the 1st respondent on her complaint is riddled with illegalities and irregularities.

The 1st respondent’s reply to the petitioner’s contentions is set out in the affidavit of Moses Kipkogei. It states that it relied on the nomination lists submitted by the parties and that during the dispute resolution process, it dealt with each matter presented before it impartially and that it dismissed the petitioner’s claim for lack of evidence.

The Interested Parties support the respondent’s position on the matter and assert that they were in the TNA list all along. In her affidavit sworn on 3rd July 2013, Agnes Njoki Waithaka, the 6th Interested Party whose nomination the petitioner singles out as having been done to her detriment, states that she was in the list re-submitted by the 2nd respondent; that her name, along with those of others, had been omitted from the original list; that she was qualified for the gender top up list and was also validly short- listed in the original party list.

The 6th Interested Party contends that in the 1st respondent’s decision of 4th May 2013, one Milicent Nyaboke Omanga was removed and she replaced her; that the 1st respondent ‘cleaned up’ the nomination list, removed four people and replaced them with four others, including herself.

With regard to the issue of her eligibility, she asserts that this was not an issue before the IEBC and cannot therefore be raised now.

Determination

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 call 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.

From the original list published on 20th April 2013 and annexed to the petitioner’s affidavit as annexture INW1, the petitioner was no. 6 on the TNA party list of nominees for Nairobi County. The 6th Interested Party. Agnes Njoki Waithaka, was not on this list. The law and the essence of the decision in Petition No 147 of 2013 National Gender & Equality Commission –vs– IEBC, was that the allocation of seats in the County assemblies would be on the basis of the party list submitted prior to the elections unless there was reason to call for a further list in accordance with Section 37(2) of the Elections Act.

The 6th Interested Party argues that she was on the re-submitted list. However, it is not clear from the documents before us what that re-submitted list was, and the basis on which it was applied. The onus on the 1st respondent was to exhaust the original list, and then, deemed it necessary, formally call for another list from the political party in question.

The petitioner’s complaint no. IEBC/NDRC/0PL/195/2013, in which she sought removal of Agnes Njoki Waithaka as the TNA gender top up nominee, was dismissed on the basis that there was no evidence presented that the nomination of Agnes Njoki Waithaka was void.

It appears to us that the respondent failed in this instance to properly apply the law as it was required to in nominating the 6th Interested Party as a gender top up nominee in Nairobi County instead of the petitioner. As she was not on the original party list submitted before the elections, and there is no evidence that the respondent was unable to fill the slots for TNA from the original list, there appears to be no basis for the nomination of the 6th Interested Party in place of the petitioner.

For the above reasons, this matter is remitted to the respondent to reconsider and carry out the gender top up nominations in accordance with the provisions of Article 177 of the Constitution and section 34 of the Elections Act.

The respondent shall render its decision upon reconsideration of this matter within 14 days of today and thereafter gazette the nominee.

Each party shall bear its own costs of the petition.

Dated, Delivered and Signed at Nairobi this 12th day of July 2013

MUMBI NGUGI D. S. MAJANJA WELDON KORIR

JUDGE JUDGE JUDGE