[2017] KEHC 3440 (KLR)
The court held that once the IEBC has gazetted the names of nominated members to the County Assembly, the process of election by nomination is complete. Any challenge to such nominations constitutes an election dispute, which must be determined by an Election Court through an election petition, not by the High Court...
Source-derived case information.
- Citation
- [2017] KEHC 3440 (KLR)
- Parties
- Appellant: Zaynab Allyow Issack; Respondent: Jubilee Party
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Appeal 36 of 2017
- Procedural Posture
- Election Nomination Appeal / Ruling on Oral Application for Orders Pending Appeal
- Outcome
- appeal dismissed
- Judges
- FM Mutuku
- Legal Topics
- Party List Nominations, Gazettement of Nominees, Jurisdiction of High Court, Election Disputes, Special Seats, Election Petition Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zaynab Allyow Issack
Appellant
Jubilee Party
Respondent
Procedural Posture
Election Nomination Appeal / Ruling on Oral Application for Orders Pending Appeal
Legal Issues
- 1 Whether the High Court can grant orders stopping the swearing in of nominated members of the County Assembly after gazettement by IEBC.
- 2 Whether the dispute regarding nomination to special seats should be determined by way of an election petition.
Ratio Decidendi
The court held that once the IEBC has gazetted the names of nominated members to the County Assembly, the process of election by nomination is complete. Any challenge to such nominations constitutes an election dispute, which must be determined by an Election Court through an election petition, not by the High Court in its appellate jurisdiction. Therefore, the High Court lacks jurisdiction to grant orders stopping the swearing in of the nominated members after gazettement. The appeal and the oral application for interim orders were dismissed as the prayers sought had been overtaken by events and the proper forum for the dispute is an Election Court.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with no order as to costs.
- No orders granted on the oral application to stop the swearing in of nominated members.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELECTION NOMINATION APPEAL NO. 36 OF 2017
ZAYNAB ALLYOW ISSACK……………………...…………………...APPELLANT
VERSUS
JUBILEE PARTY…………………………………..………………..RESPONDENT
RULING
This appeal was filed on 24th August 2017 together with Notice of Motion of the same date. This court directed that the Appellant/Applicant proceeds to serve the Respondent for hearing of the Appeal on 5th September 2017. This morning this court was informed that it was not possible to serve the Appeal on the Respondent because their offices remain closed and their advocates refuse to accept service for lack of instructions. This court was further informed that gazettement of the Party List for members of the County Assembly for Marsabit was done on 28th August 2017 being Gazette Notice No. 8380 and therefore the prayers sought have been overtaken by events.
Mr. Dome for the Appellant made an oral application to have this court grant the Appellant an order stopping the swearing in of the nominated members of the Marsabit County Assembly. Mr. Dome however did not apply to withdraw the Appeal.
I have considered the oral application. The election of the Members of Assembly in respect of Special Seats by way of nominations is completed once IEBC gazettes the names of the nominees. This position was made clear by various decisions with the Supreme Court authority of Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others reported in [2016] eKLR being one of the leading decisions on that issue. As held by the Supreme Court in that case gazettement of the nominated members included in the Party Lists signifies the completion of “election by nomination” and also notifies the public of the people elected by nomination to serve in the County Assembly. It is obvious to me that any dispute arising from such election by nomination can only be determined in the same manner an election dispute for persons elected by registered voters is determined. The aggrieved party must file an election petition to be determined by an Election Court.
In view of the above reasoning, this court cannot grant the prayer sought because by so doing, this court, which is not an Election Court, would be determining an election dispute. I decline to grant an order sought. I also order this Appeal, being Election Nomination Appeal No. 36 of 2017 dismissed with no order to costs. Orders shall issue accordingly.
Delivered, dated and signed this 5th day of September 2017.
S. N. Mutuku
Judge