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Court of AppealDismissedCourt of Appeal Civil Appeal (Nairobi Constitutional Appeal from Nairobi Constitutional Petition No. E489 of 2022)· [2025] KECA 522 (KLR)

Isaac Aluoch Polo Aluochier v The Senate & 2 others

Court of Appeal of Kenya
21 March 2025
5,815 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that anyone challenging a rival candidate's qualifications for Speaker must prove it themselves — no evidence, no case.

What this practically means

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Executive summary

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This Court of Appeal judgment (Musinga, Asike-Makhandia and Nyamweya, JJ.A) dismissed the appellant's challenge to the election of Amason Jefiah Kingi as Speaker of the Senate on 8th September 2022. The appellant, an unsuccessful candidate, had petitioned the High Court seeking to quash the nomination of all seven candidates and his own declaration as Speaker-elect without a ballot, alleging the Clerk failed to verify candidates' compliance with Article 99(1)(c) of the Constitution. The High Court (Thande, J.) dismissed the petition, holding that it had jurisdiction despite the respondents' preliminary objection, but that the appellant failed to prove his claims. On appeal, the Court affirmed the framework that Article 106(1)(a) imposes both a procedural requirement (election per the Senate Standing Orders) and a substantive one (candidates qualified for election as MPs under Article 99), with the Clerk under Standing Order 5(4) bearing a duty to ascertain candidates' qualifications. However, the Court held that the burden of proving that rival candidates lacked those qualifications rested on the appellant. Section 112 of the Evidence Act did not shift the burden to the Clerk merely because nomination papers were in his custody, since the qualification information was principally within the knowledge of the candidates themselves, who should have been joined as parties. No presumption of non-compliance arose under section 119 without proof of underlying facts. Having adduced no evidence, the appellant's Article 38 and 47 claims failed. The appeal was dismissed with no order as to costs, the issues being of public interest.

Key legal issues

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01

Allocation of the burden of proof in a contest over candidates' qualifications for election as Speaker of the Senate

Holding

The burden lay on the appellant to prove by credible evidence that the other nominated candidates lacked the Article 99 qualifications; it did not shift to the Clerk under section 112 of the Evidence Act

Reasoning

Section 107 places the burden on whoever desires a court to give judgment on facts they assert; section 109 places the burden of a particular fact on the person wishing the court to believe in its existence. Section 112 is a narrow exception for facts especially within the opposing party's knowledge. The qualifications of candidates were principally within the knowledge of the candidates themselves, whom the appellant failed to join as parties, not of the Clerk. The appellant adduced no testimony or documents.

p. 8
02

Whether the appellant could invoke presumptions under section 119 of the Evidence Act from the Clerk's failure to provide information

Holding

No; presumptions of fact require the party relying on them first to prove the underlying set of facts, and none were established

Reasoning

Section 119 permits presumption of facts arising from logical inferences from other sets of facts, unlike presumptions of law. The party invoking the presumption must prove the foundational facts before the opponent rebuts. The appellant laid out no set of facts from which a reasonable inference of non-qualification could be drawn, instead transferring that burden to the Clerk. The Access to Information Act procedure was also inapplicable to obtaining the candidates' qualification evidence in litigation.

p. 9
03

The legal framework governing the election of the Speaker of the Senate

Holding

Article 106(1)(a) requires the election to be conducted per the Senate Standing Orders, from among persons qualified to be elected as members of Parliament under Article 99, including Article 99(1)(c)

Reasoning

Article 106 provides two distinct requirements: the process (Standing Orders 5 and 6 on nomination and election) and the substantive qualifications, which are those for members of Parliament under Article 99. Standing Order 5(4) obliges the Clerk to 'ascertain' every candidate's qualifications, imposing a duty on the Clerk to be completely convinced of the Article 99 qualifications. The High Court's reading of the framework was affirmed.

p. 7
04

Whether the appellant's rights under Articles 38 and 47 of the Constitution were violated

Holding

No violation was established; the appellant was duly nominated, participated in the ballot, and his claim of denial of the right to hold office was unfounded

Reasoning

Having been nominated and allowed to participate in the election, the appellant exercised his Article 38 rights, and having garnered no votes, the respondents did not violate his political rights. Article 47(1) and (2) on fair administrative action were inapplicable since his right to hold office was not adversely affected. The High Court did not err in so finding.

p. 9

Legal principles established

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  • A party asserting that rival candidates in an election for Speaker lack Article 99 qualifications bears the legal burden of proving that fact; section 112 of the Evidence Act does not shift that burden merely because nomination papers are in the Clerk's custody
  • Section 112 of the Evidence Act applies only to facts especially and pre-eminently within the knowledge of the opposing party and cannot be used to relieve a suitor of the obligation to discharge the burden of proof
  • Under section 119 of the Evidence Act, a party relying on a presumption of fact must first prove the set of facts on which the presumption is hinged before the opponent can come forward with rebutting evidence
  • Article 106(1)(a) of the Constitution imposes two distinct requirements for the election of Speaker: the process, conducted in accordance with the Senate Standing Orders, and the substantive qualifications of candidates, which are those for election as a member of Parliament under Article 99
  • Standing Order 5(4) places a constitutional and legal duty on the Clerk of the Senate to be completely convinced as regards the Article 99 qualifications of every candidate for election as Speaker
  • On a first appeal, the appellate court reconsiders and re-evaluates the evidence and departs from the trial court's findings only where they were not based on the evidence, were based on wrong principles, or the discretion was exercised injudiciously

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs, the issues raised being of public interest
On appeal from
High Court of Kenya at Nairobi
Nairobi Constitutional Petition No. E489 of 2022
Jurisdiction invoked
First appeal under Article 165(3) jurisdiction of the High Court challenged on appeal to the Court of Appeal (Constitution of Kenya, 2010); appeal against dismissal of a constitutional petition

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, "Isaac Aluoch Polo Aluochier v The Senate & 2 others", Case Analysis (2025). Court of Appeal Civil Appeal (Nairobi Constitutional Appeal from Nairobi Constitutional Petition No. E489 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/522/eng@2025-03-21

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