Aluochier v Senate & 2 others (Civil Appeal E104 of 2023) [2025] KECA 522 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The law on, and process of resolution of, a contest on the qualifications of persons nominated to stand for election as Speaker of the Senate
- 2.Whether the appellant's rights under Articles 38 and 47 of the Constitution were violated in the nomination and election of the Speaker
- 3.What remedies, if any, the appellant is entitled to
Key legal issues
#Allocation of the burden of proof in a contest over candidates' qualifications for election as Speaker of the Senate
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
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.
Whether the appellant could invoke presumptions under section 119 of the Evidence Act from the Clerk's failure to provide information
No; presumptions of fact require the party relying on them first to prove the underlying set of facts, and none were established
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.
The legal framework governing the election of the Speaker of the Senate
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)
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.
Whether the appellant's rights under Articles 38 and 47 of the Constitution were violated
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.No order as to costs, the issues raised being of public interest
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- 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
Relief refused
#Quashing of the nomination of the seven candidates and of the election of the 3rd respondent as Speaker of the Senate
The appellant failed to discharge his burden of proving that the other nominated candidates did not meet the qualifications in Article 99 of the Constitution
Declaration that the appellant was the only duly nominated candidate and was Speaker-elect without a ballot
No credible evidence established that only the appellant met the qualifications; the appellant did not present any witness testimony or documents
Swearing in of the appellant as Speaker and monetary compensation equivalent to the Speaker's remuneration
Consequential on failure to prove the substantive claim; no violation of the right to hold political office under Article 38 or to fair administrative action under Article 47 was established
Costs against the 1st and 2nd respondents
The issues were of public interest
Costs
Appeal dismissed with no order as to costs, as the issues raised therein were of public interest
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal is hereby dismissed with no order as to costs, as the issues raised therein were of public interest.
The onus was therefore on the appellant, as the party claiming that the other candidates did not meet the qualifications set out in Article 99, to prove the existence of this fact, and demonstrate through credible evidence that the nominated candidates did not possess the qualifications.
Section 112 was not meant to relieve a suitor of the obligation to discharge the burden of proof.
A constitutional and legal duty is therefore placed upon the 2nd respondent to be completely convinced as regards the qualifications set out in Article 99 upon receiving nomination papers from candidates.
We will only depart from the findings by the trial court if they were not based on evidence on record; where the court is shown to have acted on the wrong principles of law as was held in Jabane vs Olenja (1986) KLR 661, or where its discretion was exercised injudiciously as was held in Mbogo & Another vs Shah (1968) EA 93.
the principal custodians and repositories of this information were the nominated candidates themselves, whom, being afiected persons, the appellant ought to have joined as parties in his petition.
Issues in the judgment
#The judgment states inconsistent dates for the Speaker election in the same passage, describing it as held in September 2022 but later as November 2022
The judgment cites conflicting years for the Fair Administrative Action Act, referring to it as 2015 in one passage and 2011 in another
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aluochier v Senate & 2 others (Civil Appeal E104 of 2023) [2025] KECA 522 (KLR)", 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.