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Court of AppealDismissedCivil Appeal 42 & 43 of 2018 (Consolidated)· [2022] KECA 589 (KLR)

Letuiya & another v Independent Electoral Boundaries Commission & 4 others; Samburu County Government (Interested Party)

Court of Appeal
28 April 2022
RNR. N. NambuyeWKW. KaranjaKLDr. K. I. Laibuta
4,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that once IEBC gazettes nomination results, disputes can only be challenged through an election petition, not judicial review.

What this practically means

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Executive summary

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Two appellants, Jennifer Letuiya and Stefania Stein Lanyasunya, were nominated to the Samburu County Assembly under party lists and gazetted in July 2017, then degazetted by the IEBC in September 2017 via Gazette Notice No. 8752, which substituted Pauline Wanjiku Kigera and Emily Chepkemoi. They moved the High Court at Nanyuki by judicial review seeking certiorari, but the IEBC and the 2nd respondents raised preliminary objections that the dispute lay within the exclusive jurisdiction of the election court under Article 87 of the Constitution and sections 75 and 76 of the Elections Act. Kasango, J. declined jurisdiction, holding the applicants were side-stepping the constitutional and statutory scheme. On appeal, the Court of Appeal (Nambuye, Karanja and Laibuta, JJA) framed a single issue: whether the trial Judge erred in declining jurisdiction. Applying Owners of Motor Vessel 'Lillian S' and the Supreme Court's decision in Moses Mwicigi, the Court held that gazettement marks the completion of the nomination election, that IEBC's mandate is thereafter spent, and that any post-gazettement nomination dispute can only be resolved by an election petition before a Magistrate's court designated by the Chief Justice. Neither judicial review nor a constitutional petition can vitiate such a dispute, and pleadings cannot confer jurisdiction on the High Court. The consolidated appeals were dismissed with costs to the 1st and 2nd respondents, affirming the decision below.

Key legal issues

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01

Proper forum for post-gazettement nomination disputes

Holding

Only an election petition before a Magistrate's court designated by the Chief Justice can resolve such disputes after gazettement

Reasoning

The court adopted the Supreme Court's decision in Moses Mwicigi that gazette publication signifies completion of the election through nomination, ending IEBC's mandate and shifting consequential disputes to election courts. Section 75(1A) of the Elections Act vests jurisdiction over validity of election of County Assembly members in the Resident Magistrate's court. Judicial review or constitutional petitions would open a parallel electoral dispute-resolution regime contrary to the sui generis character of electoral dispute resolution.

p. 7
02

Whether the trial Judge erred in declining jurisdiction

Holding

The trial Judge was entitled to determine the preliminary objection on jurisdiction first and correctly declined jurisdiction

Reasoning

Applying Owners of Motor Vessel 'Lillian S', an issue of want of jurisdiction must be determined first. The Judge was entitled to inquire whether the controversy fell within judicial review or the electoral process, and correctly held the applicants were side-stepping Article 87 of the Constitution and section 75 of the Elections Act.

Legal principles established

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  • Party nomination disputes after gazettement by IEBC can only be determined by an election petition, not judicial review or constitutional petition
  • A litigant cannot confer jurisdiction on a court by the craft of its pleadings where statute vests it elsewhere

Court orders

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  1. 1.The consolidated appeals (Civil Appeals 42 and 43 of 2018) were dismissed
  2. 2.Costs awarded to the 1st and 2nd respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 87
  • Constitution of Kenya, 2010Article 105(1)(b)
  • Constitution of Kenya, 2010Article 90
  • Constitution of Kenya, 2010Article 165(3)
  • Constitution of Kenya, 2010Article 177(1)(a),(b),(c)
  • Constitution of Kenya, 2010Article 97(1)(a) and (b), 98(1)(a)
  • Elections Act (No. 24 of 2011)Sections 34, 35, 36, 37, 75, 75(1A), 76
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 6(3)
  • Court of Appeal RulesRule 29(1)

Cases cited (17)

  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
    [2014] eKLR

    Electoral disputes to be resolved through election petition mechanism

  • Steven Kariuki v George Mike Wanjohi & 2 Others
    [2014] eKLR

    Section 75 of the Elections Act donates power to the Resident Magistrate to determine validity of elections of County Assembly members

  • Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 Others
    [2016] eKLR

    Gazette publication signifies completion of election through nomination; disputes shift to election courts; no parallel electoral dispute-resolution regime

  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Jurisdiction flows from the Constitution or legislation; a court without jurisdiction must down tools; jurisdictional issues determined first

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR

    A court cannot arrogate to itself jurisdiction exceeding that conferred by law

  • Isaac Oerri Abiri v Samuel Nyangau Nyanchama
    Civil Appeal No. 25 of 2014 [UR]

    Trial court entitled to down tools on want of jurisdiction

  • Legal Advice Centre aka Kituo Cha Sheria v Communication Authority of Kenya
    [2015] eKLR

    Costs are discretionary and follow the event

  • National Alliance Party & Another v Independent Electoral and Boundaries Commission
    [2013] eKLR

    Proper forum for redress was an election court

  • Adan Noor v IEBC & 3 Others
    [2017] eKLR

    Approval of Moses Mwicigi; merits of IEBC decision-making not amenable to judicial review

  • National Gender and Equality Commission vs. IEBC & Another
    [2013] eKLR

    Challenges to County Assembly membership must follow Part VII of the Elections Act

  • Isaiah Gichu Ndirangu & 2 Others v Independent Electoral & Boundaries Commission & 4 Others
    [2016] eKLR

    A litigant should not ignore a statutory dispute-resolution mechanism and rush to the High Court under the guise of a constitutional petition

  • Peter Ngoge v Francis Ole Kaparo and Five Others
    Sup. Ct. Petition No. 2 of 2012, [2012] eKLR

    Courts in the constitutional set-up have competence to resolve matters turning on technical complexity of the law

  • Kennedy Moki v Rachel Kaki Nyamai & 2 Others
    [2018] eKLR

    Election court is the proper forum to challenge nomination disputes by petition

  • Kipkalya Kiprono Kones -vs- The Republic & Another Ex-parte Kimani Wanyoike & 4 Others
    [2006] eKLR

    An election petition is the only valid means of challenging an election

  • Mwihia & another vs. Ayah & another
    [2008] 1 KLR (EP) 450

    Nominations to stand for elections are part of the election process, challengeable only by election petition

  • Wamboko vs. Kibunguchi & another
    (2008) 2 KLR 477

    An election court has jurisdiction where nomination of a candidate is an issue

  • Selle v Associated Motor Boat Co Ltd & Others
    [1968] E.A. 123

    Duties of a first appellate court in re-evaluating evidence and deference to trial court's factual findings

On appeal from
High Court
Nanyuki Judicial Review No. 6 & 5 of 2017
Jurisdiction invoked
First appeal under Rule 29(1) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Letuiya & another v Independent Electoral Boundaries Commission & 4 others; Samburu County Government (Interested Party)", Case Analysis (2022). Civil Appeal 42 & 43 of 2018 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/589/eng@2022-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.