[2023] KEHC 25632 (KLR)

Kipyegomen v Independent Electoral Boundaries Commission & 12 others (Election Petition Appeal E001 of 2023) [2023] KEHC 25632 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25632 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Election Petition Appeal E001 of 2023

RB Ngetich, J

November 16, 2023

Between

Mathew Kiptoon Kipyegomen

Appellant

and

Independent Electoral Boundaries Commission

1st Respondent

United Democratic Alliance Party

2nd Respondent

Seuri Evans Kipyegon

3rd Respondent

Jerop Venaline

4th Respondent

Cheruiyot Kiplagat

5th Respondent

Cherop Jane Cherutich

6th Respondent

Kumbelel Julia

7th Respondent

Kiptui Cynthia Jerotich

8th Respondent

Korir Everline Jepkoech

9th Respondent

Jeruto Kiptala

10th Respondent

Cherop Jane Cherutich

11th Respondent

Chirchir Repher Jepkoech

12th Respondent

Kipseba Loice Jepkorir

13th Respondent

Judgment

Background 1. The Appellant Lodged a memorandum of appeal before this court on the 18th April,2023 having been dissatisfied and aggrieved by the Judgement and decree of Principal Magistrate’s court at Kabarnet dated 20th March, 2023. The Appellant appeals against the whole judgement on the following grounds: -i.That the Learned Magistrate erred and acted in error in both law and fact by failing to properly evaluate the evidence on record and therefore arriving at a manifestly wrong conclusion.ii.That the Learned magistrate erred in law and fact by finding that the Respondents acted procedurally, fairly and legally in the nomination process when there was overwhelming evidence that the nomination process was flawed and undemocratic.iii.That the Learned Magistrate erred in both law and fact by failing to consider the evidence in the affidavits and submissions by the Appellants.iv.That the learned trial Magistrate erred in both law and fact by failing to consider the evidence of the Appellants that they submitted themselves into the due process of nomination by the 1st and 2nd Respondents but they were shortchanged in a flawed opaque, convoluted and undemocratic process.v.That the Learned trial Magistrate erred in both law and fact by not finding from the evidence on record that the party list nomination and gazettement process and product by the 1st and 2nd Respondents was wholly a product of convoluted, flawed, discriminatory, opaque, full of influence peddling, cronyism, nepotism, a crassly and totally undemocratic process.vi.That the Learned Magistrate erred in both law and facts by ignoring the Appellants pleadings and evidence and wholly relying on the Respondents pleadings.vii.That the Learned Magistrate erred in both law and fact by ignoring overwhelming evidence by the Appellants that the nomination process carried out by the 1st and 2nd Respondents of the 3rd to 13th Respondents was flawed and ripe with procedural manipulation, nepotism tendencies and influence peddling contrary to the nomination regulations, democratic and transparency tenets and the law.viii.That the learned magistrate erred in both law and fact by expressing outright bias against the Appellants and disregarded their evidence tendered to the exclusion of the overwhelming evidence by the Appellants.ix.That the Learned Magistrate erred in both law and fact by relying on the list dated 24th August, 2022 generated by the 1st and 2nd Respondents to affirm the gazetted nominees when in fact the final and legal list for gazettement should have been the one published on the 27th July,2022.

2. The Appellant urged this court to allow this appeal with costs and the entire decision delivered on 20th March, 2023 by Honourable C.R.T ATEYA, Principal Magistrate in Kabarnet Chief Magistrate’s Court Election Petition No. 001 of 2023 be set aside.

3. After directions on hearing of appeal being issued, the Respondents filed two Notices of preliminary objection. The first notice of preliminary Objection dated 28th September, 2023 was filed by the 3rd -13th respondents on the following grounds: -i.The appeal has been filed without the payment of the required deposit of security under Rule 35(4) of the Elections (Parliamentary and County Elections) Petition Rules, 2017. ii.The Record of appeal was filed and served out of time against Rule 35(5) of the Elections (Parliamentary and County Elections) Petition Rules,2017.

4. The second Notice of preliminary objection is dated 26th September, 2023 filed by the 1st Respondent on the following groundsa.That the appeal offends the mandatory provisions of Section 78 of the Elections Act as read with Rule 34(4) of Elections (Parliamentary and County) Petitions Rules, 2017 as the Appellant failed to deposit security for costs on the appeal.b.The Appeal herein is a nullity, lacks both legal and factual merit and ought to be dismissed with costs.

5. When the matter came up for mention on 29th September 2023, Mr Keter counsel for the 3rd to 13th Respondents informed court that they had been served with a notice to act in person and notice to withdraw the appeal dated 21st July 2023 filed on 27th July 2023 and for that reason, they did not file written submissions. He said he had also noticed that the Appellant did not deposit security for costs and they were not opposed to appeal being withdrawn. Ms. Muyuka counsel for the 1st Respondent also confirmed that she had been served with notice to act in person and notice to withdraw the appeal and she had no objection.

6. However, Mr. Boiwo Advocate who had been on record for the appellant informed the court that he was not aware of the notice to act in person nor notice to withdraw the Appeal. The Appellant who was following proceedings virtually came to court physically and informed the court that he did not file notice to act in person and notice to withdraw the appeal.

7. Following allegation by the Appellation that he was not the maker of notice to act in person and notice to withdraw the Appeal, the Respondent’s counsel urged this court to direct investigation to be done in respect to the appellant’s allegations. The court directed the Director of Criminal Investigations (DCI) to investigate, file report and take the necessary action following investigations; and awaiting the report, parties were directed to file written submissions in respect to preliminary objections filed on 28th September 2023 by 3rd to 13th Respondents and preliminary objection filed dated 26th September 2023 by the 1st respondent.

8. At the time of mentioning this matter on 23rd October 2023, no report had been filed by DCI.In view of the fact that the Appellant disowned notice to have the appeal marked as withdrawn and the fact that no report had been filed by the DCI as directed by court, the court proceeded to deem the matter as still pending for determination and proceed to make determination on preliminary objections and appeal. Advocates representing all the parties herein confirmed that they had filed submissions in respect to the two preliminary objections and the appeal.

9. I will start by determining the two preliminary objections. The issue of deposit for security for costs has been raised in both applications. The second ground in the first preliminary objection delay in filing and service of Record of appeal out of time.

Preliminary Objections Submissions By 3Rd To 13Th Respondents 10. In preliminary objection dated 28th September 2023 the 3rd to 13th Respondents submit that the Appellant failed to deposit security for costs as required and failure to do so deprives this court the jurisdiction to deal with a matter further and cited the cases of Evans Nyambaso Zedekiah & Another v Independent Electoral and Boundaries Commision & 2 others [2013] eKLR and Morris Muindi Mutiso v Naomi Namsi Shaban & 2 others [2017] eKLR.

11. Counsel submit that the Appellant filed and served the record of appeal outside the timelines allowed by Rule 34(6) of the Elections (Parliamentary & County Elections) petition Rules 2017. That a perusal of the Appellant’s documents will show that while they filed their memorandum of appeal on 18th April,2023; they filed their record of appeal on the 8th June, 2023 which was 45 days later, a whole 24 days outside the allowable timeline.

12. Counsel further submits that when this matter came up for directions on the 22nd May,2023, the court directed the appellant to file and serve their record of appeal within 7 days but failed to comply and when the matter came up for mention on 12th June, 2023, the court directed that the Appellant file and serve their written submissions within 30 days but filed on 14th August, 2023 and served on 16th August,2023 a month after the dateline.

13. Counsel argues that the importance of timelines in election petitions cannot be overstated; that Section 75(4) of the Elections Act provide that appeals on election petitions should be heard and determined within 6 months from the date of filing of the appeal and the court should not forget that the appellant has wasted time by failing to adhere to statutory timelines and cite the case of Lemanken Aramat vs Harun Meitamei Lempaka & 2 others [2014] eKLR.

Appellant’s Written Submissions 14. The Appellant submits that memorandum of appeal was filed on 18th April, 2023 and the notice of appeal, memorandum and notice for address of service were served within the seven days as required. That when he inquired from the court registry staff as to whether security for costs of Kshs. 100,000/= was payable on appeal in the light of the fact that security for Kshs. 100,000/= had already been paid at the election trial court, registry staff upon consulting with the Deputy registrar informed the Appellant that the security for costs on appeal was not payable and the appellant therefore paid the Kshs. 25,000/= being filling fees for the appeal and believed that was the position but is still ready and able to pay the security and/or any court fees as required; failure was inadvertent based on an honest belief as advised by the Deputy Registrar. The Appellant prayed to be granted leave and extension of time to pay the security for costs within 2 days of the determination of this application in the interest of justice.

15. The appellant further submit that what is before this court is an appeal and not an election petition and this court is not an election court, but rather an appellate court whose jurisdiction is derived from the provisions of Part VIII of the rules, on appeals and in keeping with the Rule under (4), what was payable on appeal is the fees set out under the second schedule and it is not indicated that security for costs is payable; that section 13 of the Rules is clear that it is only at the filing of the petition by a petitioner at the election court stage that security for costs shall be paid and submit that rules must be given their ordinary textual meaning and interpretation; and further, provisions of section 32 of the Rules do not mention security for costs and submit that the Appellant paid the fees required.

16. The Appellant submits that what the respondents ought to have done was to approach the court with an application for the Appellant to be directed to pay further security of costs if they felt the amount paid in the election court was not enough to cover their costs instead of filing a preliminary objection.

17. Counsel further submit that the courts took the view that time could be extended for depositing of security for costs even in election petitions under Rule 19 of the 2017 of Elections Petitions Rules which provides that a court may, for the purpose of ensuring that justice is done to any person, extend the time within which something is to be done and cited the case of Samwel Kazungu Kambi & Another vs Nelly Illongo County Returning officer, Kilifi County & 3 Others[2017]eKLR, where the court was of the view that as long as cogent reasons were given, a court could exercise its discretion and permit the payment of security for costs.

18. Further that Article 159(2)(e) provides that the purpose and principles of the constitution shall be protected and promoted and in that regard access to justice ought not to be impeded by the mere failure by a party to deposit security for costs within the prescribed time.

19. The Appellant submits that access to justice is a principle of the Constitution by dint of Articles 48 and further section 78(3) of the Elections Act presupposes that a petition would not be struck out for reason that the petitioner has failed to deposit security for costs as required unless an application to that effect is made by the Respondent. That the provision indicates that the failure to deposit security would only halt any further proceedings in respect to the petition.

20. As to whether the record of appeal was filed within the statutory timelines, the Appellant admit that the record of appeal was filed out of time but was occasioned by delay in obtaining proceedings from the trial court as confirmed by certificate of Delay issued on 5th June, 2023 which indicate that memorandum of appeal dated 17th April,2023 was filed within 30 days as required and fees of kshs 1000 for proceedings paid on 24th March,2023 and it took a period from 24th March,2023 up to 26th May,2023 to supply proceedings to the Appellant to prepare and file the Record of Appeal.

21. The Appellant urged this court to exercise discretion under Rule 19 of the Elections Petition Rules to enlarge time in the interest of justice, to extend time, in the circumstances and grant leave to the appellant to pay further costs within two days of its ruling and to then proceed with the determination of the appeal, in the interests of justice.

Analysis And Determination On Preliminary Objections 22. I have perused the pleadings and considered submissions by the parties on the two preliminary objections filed by the Respondents and find the following as issues for determination: -i.Whether the failure to deposit Security for Costs is fatal to this appealii.Whether this matter should be dismissed for delay in filing and service of record of appeal.

(i)Whether the failure to deposit Security for Costs is fatal to this appeal 23. It is not disputed that the Appellant did not pay deposit security for costs when filing this appeal and at the close of hearing, no deposit had been paid by the appellant. The respondent’s argument is that failure by the appellant to comply with requirement to deposit security for costs deprives this court the jurisdiction to deal with the matter further and relied on the case of Evans Nyambaso Zedekiah & Another v Independent Electoral and Boundaries Commision & 2 others [2013] eKLR and Morris Muindi Mutiso v Naomi Namsi Shaban & 2 others [2017] eKLR in support of this argument.

24. In response, the Appellant argued that he deposited Kshs.100,000 when filing his election petition before the subordinate court and had not withdrawn the amount and upon filing of this Appeal, he inquired from the registry official and deputy Registrar whether deposit is payable and was informed that the same is not payable. He further argues that there is no express provisions from the statutes on election that provide for the payment of deposit for security for costs and this being an election appeal and not an election petition, this court is not an elections court and the appellate court’s jurisdiction is derived from the provisions of Part VIII of the rules, on appeals; that the appellant is no longer a petitioner but an appellant and in keeping with Rule under (4), what was payable on appeal, is the fees set out under the second schedule.

25. The Appellant further argues that it was upon the Respondents to make an application to the court to have the deposit for the security of costs deposited before the hearing of the appeal which they failed to do but chose to file the preliminary objection herein. In the submissions, appellant submits that he is willing to deposit the security for costs and if this court determine that it is payable, he be granted leave to pay within 2 days.

26. In the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the court stated as hereunder: -“The rationale for security for costs is to ensure firstly, that a party is not left without recompense for costs that might be awarded to him in the event that the unsuccessful party is unable to pay the same due to poverty; secondly, it ensures that a litigant who by reason of his financial ability is unable to pay costs of the litigation if he loses, is disabled from carrying on litigation indefinitely except on conditions that offer protection to the other party. In Noor Mohamed Abdulla vs Ranchhodbhal J. Patel & Another (1962) E.A. 448, it was held: -“The order for security for costs in such a case is not directed towards enforcing payment of the costs as such, but is designed to ensure that a litigant who by reason of near insolvency is unable to pay the costs of the litigation when he loses, is disabled from carrying on the litigation indefinitely except upon terms and conditions which afford some measure of protection to the other parties.”

27. Further in the case of Morris Muindi Mutiso vs Naomi Namsi Shaban & 2 Others [2017] eKLR the court observed as follows:“61. Again, as the aforesaid decisions were rendered by courts of concurrent jurisdiction as this one and were therefore not binding on it, this court took firm view that deposit of security of costs is a prerequisite for the sustenance of petition. Failure to deposit the security for costs is not a procedural technicality that can be cured by Article 159 (2) (d) of the Constitution of Kenya. Notably, Article 159 (2) (d) of the Constitution of Kenya is not a panacea of all omissions and commissions as some actions are hinged on mandatory and not discretionary provisions of the law.

62. Section 78 (1) of the Act shows that the same is couched in mandatory terms. It does not give a court room to be flexible. The amount to be deposited under Section 78 (2) of the Act is also non-negotiable. In the case of petitions against a member of Parliament or a county governor, the deposit for security is Kshs 500,000/=. A court cannot therefore exercise its discretion to reduce or enhance the said deposit.”

28. The Court of Appeal considered this issue in the case of Lydia Mathia vs Naisula Lesuuda &Another [2013] eKLR and noted that there was no express provision in the Act or Rules for security for costs in election appeals. The court observed as follows: -“9. It is indisputable from the wording of section 78 of the Act as a whole and from the definition of a “petition” and “Election Court” in section 2 of the Act as well as from the provisions of the relevant election petitions rules, that the deposit for security for costs is solely confined to election petitions filed in an Election Court. By Article 93 (1) of the Constitution, Parliament consists of the National Assembly and the Senate. From the nature of the petition filed by the appellant in the Election Court, it was a petition against the 1st respondent as a member of Parliament and was by s.78 (2) (b) of the Act required to deposit kshs. 500,000/- as security for costs. The purpose for which the deposit was made was served by the conclusion of the petition. The submission by Mr. Kanjama that Parliament did not intend that the requirement for deposit should solely apply to election petitions and further that Parliament did not intend a person to prosecute an appeal from the decision of an Election Court without providing sufficient security for costs is not supported by the Act or by any other law. If such was the intention of Parliament it could have made express provisions in the Act and in the Election Petition Rules and could not have specifically excluded appeals from the operation of the Election Petition Rules.”

29. The Court of Appeal then went on to observe as follows:“Moreover, the present application was not made under section 78 of the Elections Act. To import the provisions of section 78 as a general rule regarding provisions of security for costs in election disputes including appeals to Court of Appeal is tantamount to legislating which is not the function of the Court. It may well be that Parliament deliberately avoided legislating on deposit for security for costs in the appeals in the Court of Appeal as an election petition is quite distinct from an appeal. An appeal is confined to matters of law while an election petition involves, in many cases, a mass of factual evidence. By providing for a relatively large and a mandatory deposit for security of costs the Parliament intended, among other things, to filter out frivolous petitions.

30. Further in the case of Lorna Chemutai & 4 Others vs Independent Electoral & Boundaries Commission & 2 Others [2018] eKLR, the court had this to say,“In my view, and noting the absence of express provisions in the Rules requiring the deposit of security for costs in appeals in election petitions, I believe the court is left with the discretion to balance the competing rights of the parties; the right of a party to seek justice in an appellate process, and the right of a successful party in the court of first instance to be assured that it will receive payment of such costs as may be awarded in the event that the appeal is unsuccessful.In the present case, the appellants argue that they wanted to utilize the deposit for security for costs in the lower court as security for costs in this appeal. However, noting that they were the unsuccessful party in that case, utilizing such deposit would leave the costs of the successful party in that litigation unsecured. It has not been indicated if, and how much, was awarded in respect of costs in that matter.Accordingly, while I am of the view that the appeal should not be struck out for failure to make a deposit as security for costs, I believe that the appellants must be required to deposit an appropriate amount in respect of the appeal.The amount required to be deposited as security for costs in an election petition before the lower court is Kshs.100,000. In my view, the appellants are entitled to prosecute their appeal, subject to their depositing the same amount of Kshs.100,000 as security for costs in this appeal”.

31. The Appellant herein has stated that he is ready and still willing to deposit the security for costs if directed by court to do so. Rule 19 of Election (Parliamentary and County) Petitions Rules 2017 provides that a court may, for the purpose of ensuring that injustice is not done to any person, extend the time within which something is to be done provided sufficient reasons are given reasons were given. The Appellant has demonstrated sufficient reason for failure to deposit security for costs and is willing to deposit as may be directed by court. I also note that the respondents failed to apply for appellant to be compelled to deposit security at the earliest opportunity instead they filed the two preliminary objections at the tail end of this appeal. The preliminary objections are dated 26th and 28th September 2023 while directions to dispose the appeal by way of written submissions were given on 12th June 2023. Infact the preliminary objections were filed two months after notice of withdrawal of appeal was filed.

32. Having considered the above cited authorities and circumstances of this case, I am of the view that the appellant has sufficiently explained failure to deposit security for costs. I am however of the view that the intention for provision for deposit for security for costs should not be lost. I also take note of the fact that the Appellant is ready and willing to deposit security for costs and proceed to order that the Appellant do deposit kshs 100,000 being security for costs within 10 days from the date of this judgment.

(ii)Whether this matter should be dismissed for delay in filing and service of record of appeal. 33. The Respondents argues that the Appellant has not adhered to the timelines as provided by the law. The appellant has not disputed having filed and served the record of appeal out of time and has attributed the delay to delay in supply of typed proceedings by the lower court and has filed certificate of delay.

34. I however note that even after filing record of appeal, the appellant delayed in serving the respondents with the record of appeal. This also apply to filing of written submissions by the appellant. No sufficient explanation has been given for delay. Rule 34 sub-rule 6 of the Election (Parliament and County) petition rules provides that the appellant shall file a Record of Appeal within 21 days of filing the Memorandum of Appeal.

35. Explanation for delay in filing record of appeal has been sufficiently explained but no satisfactory explanation has been given for delay in service of record of appeal and filing of submission. However, in view of the fact that this issue was not raised early in the proceedings and in the interest of having the issues raised determined on merit, I am inclined to exercise my discretion as provided under Rule 19 of the Election (Parliamentary and County) Petitions Rules and deem service of the record of appeal as having been duly done and proceed to consider the appeal on merit

36. From the foregoing, I am inclined to dismiss the two preliminary objections filed by the respondent and proceed to determine the appeal herein on merit.

The Appeal 37. Having determined the preliminary objection, I now proceed to determine the appeal. The appeal was canvassed by way of written submissions summarized hereunder.

Appellant’s Submissions 38. The Appellant submits that this court has original unlimited jurisdiction to determine the constitutionality, legality and regularity of the election of the 3rd to 13th Respondents herein to the county Assembly of Baringo vide the gazette notice earlier set out notwithstanding the provisions of the Elections Act, 2011. He urged this court to look at this appeal in its totality taking into account all the facts, the law and constitutional provisions on elections and representation generally by determining the regularity, legality and constitutionality of the nomination of the 3rd- 13th Respondents.

39. The Appellant argue that the 1st and the 2nd Respondents flouted procedural, regulatory, statutory and constitutional provisions as relates to the election of the 3rd -13th Respondents herein and submit that Article 259 provides that the constitution should be interpreted in a manner that promotes its purpose, values and principles and advances the rule of law, human rights and fundamental freedoms in the Bill of Rights.

40. The Appellant submits that the party list category of PLWD’s for Baringo County is not as clear as to who exactly represents this category as the list contains conflicting and insufficient details of the persons meant to represent the category being Kandie Christine Jepkemoi and Kipyegomen Mathew Kiptoon with both having the same PLWD registration number (NCPWD/P/1/7451) attached to them contrary to the law and Regulations requiring the 1st Respondent to satisfy itself as to the correctness, completeness, propriety, regularity, legality and constitutionality of the party list submitted; that PLWD registration No. NCPWD/P/1/7451 is indicated as for both the Appellant and the person ranked first-Kandie Christine Jepkemoi.

41. The appellant submits that Article 88(4)(d) and (k) of the Constitution provide that beside other duties, the 1st Respondent is required to ensure compliance with Article 82(1)(b) in respect to nomination of candidates by parties; election of the candidates through party lists, preparing the guidelines to the political parties to guide them in the process of compliance, publishing the party lists in the newspaper and gazetting them and designating the elected candidates to the special seats they are elected to occupy but the 1st Respondent failed to play its role in respect to Baringo County UDA Party list to the detriment of PLWDs.

42. The Appellant submits that it was not by accident that no PLWD was nominated and gazetted in the Baringo County MCA Party list stating that the PLWD registration number NCPWD/P/17451 listed as being for both nominees would have created confusion as to who exactly was nominated and gazetted since the PLWD registration Number cited belongs to the Appellant but a different person ranked ahead of him in their category who would have been nominated and gazetted with the Appellant’s registration Number therefore posing a factual and legal challenge to the 1st and 2nd Respondents; and to avoid this factual and legal challenge, the 1st and 2nd Respondents became innovative and decided to skip this deserving category and nominated two youth (one of whom the PPDT judged against her nomination –the 4th Respondent), under marginalized category to cover for his deficiency a manifestation of procedural manipulation of a process which must be impugned but the election court disregarded this in its judgement.

43. The appellant further submit that the assertions by the 2nd and 3rd-13th Respondents in paragraphs numbers 53-57 and 8,12 and 13 of their affidavits respectively that it is not mandatory for a PLWD to be nominated and elected in a party list is shocking and reckless since the constitution, statute, fairness, logic and equity demands that all the three categories of special interests groups should be accommodated whenever the opportunity allows like in this case where there were eleven(11) nomination slots apportioned to the 2nd Respondent.

44. The appellant submits that in the case of Lydia Mathia v Naisula Lesuuda & Another eKLR [2013] the court of appeal stated that an approach of constitutional interpretation that seeks to foster national unity, inclusivity and protection and participation of minorities and marginalized groups is consistent with Article 259 of the Constitution but the Respondents herein have pleaded that it is not a must under the constitution and laws to have PLWD nominated, even when the circumstances can allow.

45. And in view of the above, the Respondent’s failure to elect a PLWD to the Baringo county assembly as reflected in the Kenya Gazette notice vol. CXX1V-No. 186 dated 9th September, 2022, even when they had the chance and opportunity to do so with eleven (11) nominee slots to equitably apportion to all the marginalized categories, must be impugned.

46. The Appellant further submit that the party list was submitted more than 45 days to the election date contrary to the provisions of Section 35 of the Elections Act,2011; that the 1st Respondent avers that they received the party list from the 2nd Respondent on 25th June, 2022 but did not attach the letter forwarding the list as evidence and the 2nd Respondent in replying affidavit stated that they submitted the first party list on 4th July,2022 which was rejected by the 1st Respondent which is 35 days to the election therefore outside the 45 days to the election.

47. The Appellant submits that the 2nd Respondent submitted its list on the 1st August,2022 way past the deadline of the 45 days to the general election as required under section 35 of the Elections Act hence the 1st Respondent received and acted on an illegal party list in processing the nomination and election of the special category groups and must therefore be impugned.

48. The Appellant further submit that the 2nd respondent’s party list was amended after submission to the 1st Respondent contrary to the consensus by the Baringo County UDA leaders; that the consequent submission to the 1st Respondent should have been reflected in the daily newspaper publication and the Kenya Gazette Notice but the final publication of the list in the daily newspapers of 27th July,2022 was interfered with the 5th Respondent appearing as a marginalized ethnicity category yet from application for nomination stage, to the consensus list by the Baringo County UDA leaders, he was in the category of marginalized youths and submit that the party list had procedural manipulation, was irregularly and illegally interfered with by the 1st and the 2nd Respondents but the election court failed to consider in its judgement.

49. The appellant further submit that a constituency which is smallest in population and geographical size in Baringo County-Mogotio constituency was apportioned four (4) nomination slots being the 3rd, 4th, 9th and 13th Respondents yet the county consist of six constituencies due to pressure and manipulation on the 2nd Respondents by influential persons from Mogotio constituency which is undemocratic, irregular and illegal act and should not be expected from a political party in terms of Article 91 of the Constitution and Political Parties Act.

50. Further that Jerop Venaline, the 4th Respondent had a political parties dispute Resolution Tribunal judgement against her nomination but she was nonetheless gazetted by the 1st Respondent as the 2nd Respondents nominee No.2 under the marginalized (youth) category and the 1st and the 2nd Respondents did not comply with the judgement and decree of the PPDT in respect to her nomination despite being served with the judgment.

2ND RESPONDENT’S SUBMISSIONS 51. On whether the 2nd respondent discharged its mandate in respect to nomination of individual to special representative seats in the county assembly of Baringo, the 2nd Respondent submit that Article 90(1) of the constitution provides that, election for the seats of the members of county assemblies under Article 177(1) (b) and (c), shall be on the basis of proportional representation by use of party lists and section 2 of the Elections Act defines ‘party list” as a list of nominees prepared by a political party and submitted to the commission; and cited the case of Lydia Mathia vs Naisula Lessuda & Another [2013] eKLR where the court of appeal defined party list as follows: -‘The definition of ‘party lists” under section 2 of the election act suggested ownership of the list by the political party that has prepared it. The practice, indeed the law is that the power over who gets the reserved seats resides with the parties themselves and no other authority “

52. Further the responsibility of preparing the party list, submitting it to the 1st respondent and the power over who gets the special/ reserved seats resides with the 2nd respondent political party and not any other person and or authority.

53. The 2nd respondent further submits that the role of political parties in respect to party lists was also appreciated in the case of National Gender Commission vs IEBC & Another. [24] where at paragraph 45 the court stated as follows: -“..how the election of persons on the list is carried out is a matter entirely within the mandate of the respective political parties. It is for this reason that regulation 55(1) of the general regulation provides that, “the party list contemplated under regulation 54{the lists under Article 90(1) of the constitution shall be prepared in accordance with the rules of the political party.” Furthermore, paragraph 19 of the second schedule to the political parties Act (Act No. 11 of 2011) requires every party to have, “nomination rules governing the preparation of party lists. “

54. And the supreme court restated the same position in the case of Moses Mwicigi & 14 Another vs Independent Electoral and Boundaries & 5 Other (2016) eKLR by holding as follows: -“(95)the effect is that the process of preparation of the party list is an internal affair of the political party, which ought to proceed in accordance with the national constitution, the political party constitution, and the nomination rules as prescribed under regulation 55. (96)A political party has the obligation to present the party list to IEBC, which after ensuring compliance, takes the requisite steps to finalize the “elections” for these special seats. In the event of non-compliance by political party, IEBC has power to reject the party list, and to require the omission to the rectified, by submitting a fresh list or by amending the list already submitted.”

55. The 2nd Respondent submit that on 27th July, 2022, the 1st respondent published in the standard newspaper various party lists as well as a notice inviting any aggrieved parties with disputes arising out of the party lists nominations to approach the 1st respondent internal dispute resolution committee or the political parties’ disputes tribunal for resolution of any dispute between 28th July 2022 and 6th August 2022.

56. And during the said window period available for resolving any disputes, the 2nd respondent also received complaints arising from the party list published and through its EDRC, the said disputes were heard and determined and during the dispute resolution period, the party did not receive any complaint concerning the nomination process of member of county assembly in Baringo County.

57. The 2nd Respondent submit that taking cognizance that it is the 1st repondent’s role to oversee and ensure that the party list is in compliance with the law, wrote to the commission vide a letter dated 1st August, 2022 requesting permission to amend the party list so as to reflect the EDRC ‘S decisions and the 1st respondent authorized the 2nd respondent to amend its party list and after ensuring that the list was compliant with the law, proceeded to draw the names of persons to be gazzetted in their order of priority.

58. That it is misleading for the Appellant to say in submissions that he was nominated by Baringo county leaders as law expressly bestows upon the 2nd respondent the responsibility of preparing party list and has given the party the unfettered discretion to name their preferred candidates in order of their deemed priority and the 2nd respondent herein discharged its mandate as per the confines of the law and that the learned Magistrate was right to hold as such.

59. As to whether the 2nd respondent’s party list complied with the provisions of Article 177 (1) (c) of the constitution of Kenya, 2010, the 2nd Respondent argues that Article 177(1) (c) of the constitution of Kenya provides that a County Assembly consists of the number of members of marginalized group, including people with disabilities and the youth, prescribed by an Act of parliament.

60. The 2nd Respondent submit that the 2nd Respondent party list for members of Baringo county Assembly under the Marginalized Group category contained 2 persons with disabilities, one youth, one person who is a minority group and 2 persons who are marginalized in terms of their ethnicity and it is clear that the party list fully complied with the provision of Article 177 1(c) as well Section 36 (f) of the elections act as the sub –categories required under the marginalized group were accommodated; and looking at definition of word include in black law dictionary, it is clear the 2nd respondent’s list was compliant with the law.

61. The 2nd Respondent argue that Article 177 1(c) of the constitution of Kenya is not crafted in mandatory terms and listing for consideration for nomination is not a guarantee for nomination as the slots allocated to the party by the 1st respondent are limited in number and cited the case of Millicent Cherotich v Omari Esha Wanjiku & 2 other [2018] eKLR where the court stated that the marginalized group referred to under 177(1) (c) of the Constitution are defiled under two heads:-“Marginalized community” means –(a)a community that, because of its relatively small population or for any other reason, has been unable to fully participate in the integrated social and economic life of Kenya as a whole;(b)a traditional community that, out of a need or desire to preserve its unique culture and identify from assimilation, has remained outside the integrated social and economic life of Kenya as a whole;(c)an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy; or(d)pastoral persons and communities, whether they are- (i) nomadic; or (ii) a settled community that, because of its relative geographic isolation, has experienced only marginal participation in the integrated social and economic life of Kenya as a whole;” marginalized group “means a group of people who, because of laws or practices before, on, of after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27(4)”

62. The 2nd Respondent submit that it did not deliberately discriminate against persons with disability in Baringo County Assembly as the list included persons with disability and were it not for the three slots allocated to the 2nd Respondent, the said persons with disability including the Appellant herein who ranked 5th in order of the party list’s priority would have been gazette as duly elected members of the county Assembly and submits that its party list complied with the provisions of Article 177(1)(c) of the Constitution of Kenya 2010.

63. On whether the 3rd to 13th Respondents were validly nominated, the 2nd Respondent submits that as per the number of seats won by the party, the 2nd Respondent was allocated three (3) slots in the marginalized category and eight(8) slots in the Gender Top Up Category in Baringo County and the 3rd to the 5th Respondents appeared as the first three nominees on the party list under the marginalized Category whereas the 6th to 13th Respondents appeared as the first eight nominees and taking into account that the list is on priority basis, the 1st Respondent then proceeded to draw from the list the names of persons to be gazetted under the respective categories ;they cited the case of Jaldesa Tuke Debalo v Independent Electoral and Boundaries Commision & Another NYR CA Civil Appeal No. 37 of 2014[2015]eKLR where the court of Appeal observed as follows:-“We are cognizant of the principle that upon gazettement of members of the County Assembly, they are deemed to be elected members of the County Assembly…..”

64. The 2nd respondent urges this court to find that the 3rd to 13th Respondents herein deemed to have been validly nominated and duly elected as the members of the Baringo County Assembly upon their names being gazette since the election herein was through party list.

65. On the issue of costs, the 2nd Respondent submits that Section 84 of the Elections Act as read with Rule 30 of the Elections (Parliamentary & County Elections) Petitions Rules, 2017 provide that costs shall follow the cause and urge this court to find the Appeal unmerited, proceeds to dismiss it with costs to the 2nd Respondent.

3RD -13TH RESPONDENTS WRITTEN SUBMISIONS 66. On whether the 1st and the 2nd Respondents flouted the constitution or any other law in the nomination and gazettement, the 3rd to 13th Respondents submit that the constitution and all relevant laws were adhered to in the special election of the 3rd to 13th Respondents to be nominated members of the Baringo County Assembly.

67. They submit that there are two important points to note from Article 177, firstly, the article speaks to the composition of the entire county assembly and not the composition of a party-list. The County assembly, when considered as a whole must have gender balance and representation of the marginalized groups; and secondly, the specially elected members of a county Assembly are grouped into two, that is, the number necessary to ensure the allowed gender balance on one hand and members representing the marginalized, on the other hand.

68. They submit that parties are required to submit names, alternating between male and female, of all the persons who would stand elected if the party was entitled to all the special election seats and each party is allocated seats proportional to its number of elected members of the County Assembly which is found in Rule 20 of the Elections (Party Primaries and Party Lists) Regulations,2017.

69. They further submit that contrary to the Appellant’s assertion, there are no different party-lists for the various categories of marginalized people; the party list is one, divided into two categories, that is, the gender top-up category and then the marginalized persons category and it has been held that the hierarchy of the party-list binds the IEBC. That if a certain party decides that the first two names in the party list for the marginalized categories are youth (alternating male and female) and the party is only able to nominate one person for the marginalized groups category, then for that specific party, that person becomes the specially elected member to represent marginalized persons; that there is no legal requirement for each party to have representation of all the sub-categories of the marginalized persons and the Appellant’s argument that there should be a separate party list for PLWD or the other sub-categories of the marginalized groups is based on misunderstanding of our law as it currently stands.

70. Further that while IEBC is legally required to ensure that the party list submitted is in compliance with the law, the IEBC is bound by the priority in the party list; IEBC cannot alter a party list that has been submitted to it and if any amendments are required, the IEBC sends the party list back to the party to make those changes.

71. They submit the Appellant’s averments are an attempt to mislead this Honourable court as Hon. Cherop Jane Cherutich, holder of PWD Card number NCPWD/P/268702 is a member of Baringo County Assembly and a person living with disability; and the argument that the party list was not submitted within stipulated timelines is an attempt to grasp at straws because that is not the correct position and secondly, the appellant never raised this issue at the trial and is therefore estopped from raising it during the appeal and relied on the case of Raila Amolo Odinga & Another vs. IEBC & 2 Others(2017)eKLR.

72. They submit that this court ought to ignore all the arguments raised by the Appellant outside of their pleadings filed in the election petition before the trial court and submit that there was no breach of the Constitution or any other laws in the process of the nomination of the 3rd to 13th Respondents to the county assembly of Baringo and relied on submissions filed in the lower court.

73. They further submit that argument of procedural manipulation of the Party-list are baseless and unsubstantiated and the argument that a certain constituency received a larger share of nominated members than others is unsubstantiated and even if it was proven to be the case, election of members to the County Assembly in accordance with Articles 177(b) and (c) of the constitution is a matter of representation of various disadvantaged groups and as long as Article 177 of the constitution is adhered to, it matters not even if all the names in the party list are from one constituency; and no evidence was adduced as to how pressure from strong politicians affected the party-list as alleged by the Appellant.

74. Further the allegation of existence of a PPDT judgement against the nomination of one Jerop Venaline is an attempt to mislead this court as the said Jerop Venaline was not a party to the tribunal proceedings and no judgment was given against her; that a perusal of the PPDT judgement contained in the Appellants record of appeal shows that the complainant in that matter was an individual by the name Risper Jepkener Cheruiyot and the complaint was against UDA party as well as IEBC;that Jerop Venaline was not a party to the suit and there were no orders given against her.

75. They submit that it is important to note that the Appellant had made an application to have the PPDT judgement as part of his evidence but the request was declined by the trial court; the application was dismissed with costs and the PPDT judgement should therefore be expunged from the record of appeal; the issue of the Appellant’s ranking in the party-list is an issue to be resolved between the Appellant and his political party since the political party is given legal freedom to present its own party list and to present the names in whatever hierarchy the party sees fit and no evidence has been adduced to warrant revoking the nomination of the 3rd to 13th Respondents to Baringo County assembly.

76. On costs, they submit that Section 84 of the Elections is clear on this and relied on the case of Jasbir Singh Rai & 3 Others v Talochan Singh & 4 Others Petition No. 4 of 2012; [2014]eKLR where the supreme court pronounced itself regarding costs and submits that the Appellant’s failure to deposit security for costs demonstrate mischief on his part and he has not raised any issues of substantial public interest to warrant being excused from paying costs after dragging the Respondents to election petition court and now this appeal. They urge this court to dismisses this appeal.

ANALYSIS AND DETERMINATION 77. As provided by Section 75(4) of the Act this court is required to consider issues of law this being an appeal from the decision of an election court. What constitutes matters of law in election matters was aptly settled by the Supreme Court in the case of Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 7 Others Sup. Ct. Petition No. 2B of 2014 (2014) Eklr.

78. Although the Supreme Court was dealing with an appeal from the Court of Appeal to itself nevertheless the principles enunciated in that judgment apply to this Court which is sitting on an appeal from the Magistracy as an election petition trial court. The Supreme Court expressed itself on what constitutes matters of law as follows: -“(81)Now with specific reference to Section 85A of the Elections Act, it emerges that the phrase “matters of law only”, means a question or an issue involving:(a)the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor:(b)the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor:(c)the conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claims that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.[81A]It is for the appellate Court to determine whether the petition and memorandum of appeal lodged before it by the appellant conform to the foregoing principles, before admitting the same for hearing and determination.(82)Flowing from these guiding principles, it follows that a petition which requires the appellate Court to re-examine the probative value of the evidence tendered at the trial Court, or invites the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. We believe that these principles strike a balance between the need for an appellate Court to proceed from a position of deference to the trial Judge and the trial record, on the one hand, and the trial Judge’s commitment to the highest standards of knowledge, technical competence, and probity in electoral – dispute adjudication, on the other hand.

79. With the foregoing guidance and which is binding on this Court, this Court must therefore strictly keep within the above confines. The Court should not accept any invitation ‘to re-examine the probative value of the evidence tendered at the trial court’ or ……to calibrate any such evidence, especially calling into question the credibility of witnesses…’. Put differently, this Court should resist the temptation of venturing into the realm of evidence, evaluating that evidence and reaching its own conclusions on factual matters. However, this Court reserves the jurisdiction to venture into the said realm of evidence with a clear purpose of determining the applicability or interpretation and/or construction of a provision of the Constitution, an Act of Parliament, subsidiary legislation or any legal doctrine.

80. I have perused and considered record of appeal together with submissions filed by the parties herein and find the following as issues for determination: -i.whether the 1st and 2nd Respondent complied with the law in nomination of the 3rd to 13th Respondents and failing to nominate the Appellant hereinii.Whether reliefs sought should issue(i)Whether the 1st and 2nd Respondent complied with the law in nomination of the 3rd to 13th Respondents and failing to nominate the Appellant herein.

81. I will start by looking at the legal framework in respect to party list and nomination of persons to county Assembly. Article 177 of the Constitution (Membership of a County Assembly) provides as follows: -‘177. (1) A county assembly consists of-(a)members elected by the registered voters…(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(d)the Speaker, who is an ex officio member.(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. (3)The filling of special seats under clause (1) (b) shall be determined after declaration of elected members from each ward…

82. From the foregoing, Article 177 of the constitution gives political parties mandate to nominate members to the County Assembly. The purpose of the said provision is to guarantee that no more than two-thirds of the memberships of any Assembly is comprised of the same gender and to further safeguard and ensure the representation from the marginalized groups including persons living with disabilities and the youth. The members contemplated under Article 177(1)(b) and (c) above are nominated by political parties proportionate to the number of seats garnered in (a) above.i.Nomination of members under subsection b and c above can only be ‘drawn’ from a list which is prepared by a political party and known as party list presented to IEBC is published in the Kenya Gazette by IEBC.

83. Article 90 of the Constitution (Allocation of party lists seats) gives responsibility to IEBC in respect to nomination as hereunder: -(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.(b)except in the case of the seats provided for under Article 98(1)(b), each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; and(c)except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.(3)The seats mentioned in clause (1) shall be allocated to political parties in proportion to the total number of seats won by candidates of the political party at the general election.

84. Further Sections 34, 35 and 36 provide as follows:’34. (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…35. A political party shall submit its party list to the Commission at least forty-five days before the date of the general election.36. (1) A party list submitted by a political party under-(f)Article 177 (1) (c) of the Constitution shall include eight candidates, at least two of whom shall be persons with disability, two of whom shall be the youth and two of whom shall be person representing a marginalized group(2)A party list submitted under subsection (1) (a), (c), (d), (e) and (f) shall contain alternates between male and female candidates in the priority in which they are listed.(3)The party list referred to under subsection (1) (f) shall priorities a person with disability, the youth and any other candidate representing a marginalized group.(4)Within thirty days after the declaration of the election results, the Commission shall designate, from each qualifying list, the party representatives on the basis of proportional representation.(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.(9)The allocation of seats by the Commission under Article 177(1) (b) and (c) of the Constitution shall be proportional to the number of seats won by the party under Article 177 (1) (a) of the Constitution.

85. Regulations 54 to 56B inclusive re-emphasizes that Party Lists must be in consonance with the Constitution, the Act and all the attendant regulations. Regulation 54 provides for the procedure for the preparation and presentation of Party Lists until when a Final Party List is published in at least two newspapers of national circulation.Regulation 54(1) Due to the centrality of the procedure in this matter I will reproduce verbatim the said Regulation 54, as follows: -“(1)Each political party shall submit to the Commission a party list of all persons who would stand elected if the party were entitled to seats in the National Assembly, Senate or the County Assembly, as the case may be on the basis of proportional representation in accordance with Article 90 of the Constitution and sections 34, 35, 36 and 37 of the Act.Regulation 54 (4A) Each political party list nominee representing persons with disabilities shall submit, to the Commission, a certification from the National Council for Persons with Disabilities.

86. Regulation 55(1) The party list contemplated under regulation 54 shall be prepared in accordance with the nomination rules of the political party.Regulation 55(2) The Commission shall within fourteen days of receipt reject any party list that does not comply with the requirements of the Constitution, the Act or these Regulations.Regulation 55(3) The political party whose party list or nominee has been rejected by the Commission under sub-regulation (2) shall resubmit the party list or nominee within seven days from the date that the party list was rejected under sub regulation (2). 87. Regulation 15(2) provide as follows:-“15(2) Where an aspiring candidate intends to be nominated on the ground that the candidate is a person with disability, the candidate shall, in addition to the requirements specified under sub regulation (1), submit an application in Form 4 set out in the Schedule which shall be certified by the National Council for persons with Disabilities.” 88. Under Regulation 26 provide situations where IEBC can reject nomination list as follows: -(1)The Commission shall reject a party list or a name on the party list submitted by a political party where -(a)the party list does not conform to the requirements of the Constitution, the Act or these Regulations; or(b)the period for submitting revised part lists has lapsed.(2)Where the Commission rejects a party list or a nominee on the party list, it shall require the political part to resubmit the party list or nominee within such period as the Commission may specify.

89. Having looked at the above legal provisions on nomination to a County Assembly in Kenya. I will now wish to consider whether the 3rd-13th Respondents were nominated for county Assembly of Baringo county.

90. The Appellant argues that from the party list submitted by the 2nd Respondent in respect to Baringo county Assembly, persons listed under category of PLWD’s does not bring out exactly who represents the category as to who between Kandie Christine Jepkemoi and Kipyegomen Mathew Kiptoon, both have PLWD registration number (NCPWD/P/1/7451) attached to them creating confusion as to who was to represent the category and the 1st Respondent therefore failed to satisfy itself as to correctness, completeness, propriety, regularity, legality and constitutionality of the party list submitted to it, in its constitutional and statutory roles of supervising and regulating elections, (failed to comply with Article 88(4)(d) and (k) of the Constitution-to ensure compliance with Article 82(1)(b) relating to nomination of candidates by parties.

91. The Appellant argue that it is not by accident that no PLWD was nominated and gazetted in the Baringo County MCA Party list, as PLWD registration number NCPWD/P/17451 listed as being for both nominees would have created confusion as to who exactly was nominated and gazetted since the PLWD registration Number cited belongs to the Appellant and a different person ranked ahead of him in their category, who would have stood nominated and gazetted with the Appellant’s registration Number, therefore posing a factual and legal challenge to the 1st and 2nd Respondents.

92. The appellant’s argument is that the 1st and 2nd Respondents decided to skip this deserving category and nominated two youth (one of whom the PPDT judged against her nomination –the 4th Respondent) under marginalized category to address the factual and legal challenge.

93. Record show that the 3rd-13th Respondents applied for consideration for Party List nomination among other candidates. The appellant also applied in the category of Persons Living with Disabilities.UDA submitted the list and upon review by the 1st Respondent, the list was returned to the party for amendment and re-submission of a final party list.

94. From the legal provisions above, there is no doubt that the power to prepare and submit party list remain with the party, who is the 2nd respondent herein and list is prepared in order of priority considering gender, persons with disability and marginalized group.

95. Record show that the 2nd Respondent published its party list on 27th July, 2022 in the standard newspaper and any party aggrieved had right of lodging complaint with 1st respondent internal dispute resolution committee or the political parties disputes tribunal for resolution of any dispute between 28th July 2022 and 6th August 2022. ; the 2nd Respondent stated that complaints were submitted to EDRC and were heard and determined but in respect to this matter ,the 2nd Respondent did not receive any complaint concerning the nomination process of member of county assembly in Baringo County; and following EDRC’s decisions in areas where complaint were filed, the 2nd respondent wrote a letter dated 1st August, 2022 to IEBC for permission to amend the party list so as to reflect the EDRC ‘S decisions.

96. From the record, 2nd Respondent was allocated 3 slots for the marginalized group but the Appellant was ranked 5th in order of the party list’s priority and the 1st Respondent had to comply with list provided by the party which has authority to prepare and submit its party list. There is no doubt that the nomination of the Appellant was limited by the number of slots given to the party in Baringo County Assembly.

97. In the case of National Gender and Equality Commission case (supra) [2013] eKLR, the court stated as follows:-“The IEBC does not have jurisdiction over resolution of disputes related to the process of political parties preparing their party list for nominations to Parliament and the County Assembly. The jurisdiction is vested in the Political Parties Dispute Tribunal”

98. Record show that contrary to allegation by the appellant that there is nomination of person with disability; the 5th Respondent herein Hon. Cherop Jane Cherutich, holder of PWD Card number NCPWD/P/268702 is a member of Baringo County Assembly and a person living with disability; as shown by 2nd Respondent’s affidavit the 2nd Respondent prepared its list as mandated in order of priority considering gender, disability and marginalized categaires.in my view the 1st and 2nd Respondent complied with the law as set out above.

99. From record, the 5th Respondent Hon. Cherop Jane Cherutich, holder of PWD Card number NCPWD/P/268702 is a person living with disability. Nominations are meant to cater for the interests of group of people who are not represented by election in particular assembly. The 5th Respondent fall in the same category as the Appellant and interests of his category are adequately. The decision as to who gets to be in the political party lists rests entirely with the political party and it is not a function of IEBC (1st Respondent). The appellant never challenged the list prepared by his party either through the party’s internal dispute resolution or IEBC tribunal.

100. On argument that party list was not as per consensus prepared list by the Baringo County UDA leaders, in my view those are internal issues which were to be resolved by the party.

101. On issue of compliance with timelines in submitting party list, I have perused the court record and note that the issue of timelines for submitting the list to IEBC was not raised during the hearing of election petition. It cannot therefore be subject of appeal as parties are required to confine themselves to pleadings filed in the petition before the lower court.

102. From the foregoing, I am of the view that the election court did not err in finding that the nomination process of the 3rd to 13th Respondent was conducted as per the law and there was no irregularity in the process.

103. In Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission and 2 Others (Supra), the Supreme Court quoted with approval the Supreme Court of India in Arikala Narasa Reddy v Venkata Ram Reddy Reddygari and Another Civil Appeal Nos. 5710 -5711 of 2012[2014] 2 SCR where it stated that;“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.”

104. This position was clearly stated by Kimaru J. in Mahamud Muhumed Sirat v Ali Hassan Abdirahman and 2 Others [2010] eKLR as follows;“From the outset, this court wishes to state that the petitioner adduced evidence, and even made submissions in respect of matters that he had not specifically pleaded in his petition. It is trite law that a decision rendered by a court of law shall only be on the basis of the pleadings that have been filed by the party moving the court for appropriate relief. In the present petition, this court declined the invitation offered by the petitioner that required of it to make decisions in respect of matters that were not specifically pleaded. This court will therefore not render any opinion in respect of aspects of the petitioner’s case which he adduced evidence but which were not based on the pleadings that he had filed in court, and in particular, the petition”.

105. I have considered the evidence on record and the submissions filed on behalf of the parties. In his submissions, the petitioner introduces specific issues that were not pleaded. Faced with a similar scenario, the court in the case of Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2013] eKLR stated as follows:“It is established law that parties must confine themselves to their pleadings. A court of law will be seen to deviate from disputed issues if it engages in matters that are not specifically pleaded in the plaint. The court is therefore not bound to render any opinion on any new issues raised in the submissions”.

106. There is no doubt that the petition does not contain the issue raised by the petitioner on appeal that the party list was not submitted within stipulated timelines. I do not agree with appellant’s argument to the effect that this court obliged is to inquire into matters that were not pleaded. This court will not determine new issues not raised during trial of election petition. What should form the record of appeal are pleadings and proceedings that were before the election court.

(ii)Whether reliefs sought should issue 107. In respect to the appeal, having found that the 1st and 2nd Respondents complied with the constitution, statute and regulations in nomination of the 3rd to 13th Respondents, I decline to allow orders sought by the appellant. I uphold the trial magistrate’s decision in finding that the 3rd to the 13th Respondents were validly nominated to county Assembly of Baringo. The legal position on costs is that costs follow the event. The respondents are therefore entitled to costs of this appeal.

FINAL ORDERS: - 108. 1.Preliminary objections dated 26th September 2023 and 28th September 2023 are hereby dismissed.2. The Appellant to deposit kshs 100,000 being security for costs within 10 days from today’s date.3. This appeal is hereby dismissed.4. Decision by trial magistrate is hereby upheld.5. Costs of appeal to be paid by the Appellant to the Respondents.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 16TH DAY OF NOVEMBER 2023. …………………………………RACHEL NGETICHJUDGEIn the presence of:Mr. Karanja – Court Assistant.Mr. Muriuki for 3rd to 13th Respondent.Mr. Lerionka holding brief for Dr. Adrian Kamotho for 2nd Respondent.Mr. Bartous for Appellant.