National Vision Party& another v Independent Electoral and Boundaries Commission & another [2013] KEMC 18 (KLR)
The bottom line
#Kenya's High Court ruled the IEBC must fill gender top-up seats from the original party list it received, so Sarah Mohamed Ali, not Nestehe Bare Elmi, was duly nominated.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st petitioner submitted a list of party nominees prior to the elections in compliance with the law
- 2.Whether the 1st respondent being dissatisfied with the list in (i) above called for another list in compliance with the law
- 3.Whether the 1st petitioner submitted its membership list to the 1st respondent prior to the general elections in compliance with the law
- 4.Whether both the 2nd petitioner and the 2nd respondent are eligible to be nominated under the party rules and under the law
- 5.Whether the 1st petitioner is properly on record
Key legal issues
#Whether NVP submitted lists of nominees in compliance with the Elections Act
Yes - a membership list and party list were submitted prior to the elections, but neither contained the 2nd respondent's name
Section 28 of the Elections Act mandates submission of a membership list at least three months before nomination, and section 35(1) requires the party list 45 days before elections. The documents produced showed the 2nd petitioner's name on the lists submitted on 18/01/13, but the 2nd respondent's name appeared only in a letter of 29/04/13, outside the statutory timelines. Neither respondent challenged the documents.
Whether the IEBC could call for or admit a new nominee outside the original party list
No - the IEBC was required to draw the gender top-up candidate from the original list and could only use a re-submitted list to fill gaps
Reading sections 28, 34 and 36(7) of the Elections Act together, the commission's power was to direct the party to name a candidate from the existing list if the gender top-up category was omitted. The 1st respondent failed to demonstrate any authority to admit an extra list where the original list was not exhausted. Admitting the 2nd respondent, whose name did not feature in the original list, was therefore irregular.
Whether the 2nd respondent was eligible for nomination under the party rules and the law
She did not meet the education threshold in the NVP nomination rules, though the statutory education requirement was exempted for the first elections
The NVP nomination rules required a post-secondary qualification, and the 2nd respondent admitted attending only up to class four of primary school. Section 2A of the Elections (Amendment)(No.3) Act exempted education requirements for the first elections, but the court held that some basic education was intended, which she lacked. The IEBC, as the body supervising elections under Article 90(2), should have verified her qualifications and rejected the nomination under Regulation 54(5).
Legal principles established
#- The IEBC is bound to select gender top-up candidates from the original party list submitted to it and may only resort to a re-submitted list to address inadequacies or gaps in the original list
- The IEBC has a duty to confirm that persons listed in nomination lists are duly qualified for election, and may reject a nominee who is not qualified
Court orders
#- 1.Declaration that the 1st respondent exceeded its powers by failing to have due regard to the 1st petitioner's original list as submitted on 24th January 2013 and again on 12th March 2013 and consequently irregularly and illegally omitting the 2nd petitioner's name
- 2.Declaration that the 2nd petitioner's right to legitimate expectation was violated by the 1st respondent when it illegally and irregularly omitted her name contained in the original list
- 3.Declaration that the original list submitted on 24th January 2013 and re-submitted on 12th March 2013 was the only list the 1st respondent ought to have used when allocating the Mandera County Assembly special seats
- 4.Declaration that the 1st respondent ought to have used the original lists and resorted to the re-submitted list only for addressing inadequacies or gaps, namely if there was no female nominee in the list
- 5.Declaration that the 2nd respondent was illegally and irregularly nominated as the 1st petitioner's representative for the Mandera County Assembly special seat
- 6.Declaration that the 2nd petitioner is the duly nominated representative of NVP for the Mandera County Assembly special seat
- 7.Costs of the petition borne by the 1st respondent, capped at Kshs 100,000
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction over election petitions concerning nomination of County Assembly special seat representatives under the Constitution and the Elections Act (Article 90(2) referred to)
Relief refused
#Costs against the 2nd respondent
The court found it unfair to condemn the 2nd respondent to costs as she did not contribute to the circumstances causing the suit
Costs
Costs of the petition to be borne by the 1st respondent, capped at Kshs 100,000; 2nd respondent not condemned to costs.
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.
Section 36(7) Election Act expressly requires the 1 st respondent to select the gender top up candidate from the original list submitted to it.
the 2 nd respondent was illegally and irregularly nominated as the 1st petitioner’s representative for the Mandera county assembly special seat.
the 2 nd petitioner is the duly nominated representative of NVP for the Mandera County Assembly special seat as submitted by the 1st petitioner to the 1st respondent on 24th January 2013 and resubmitted on 12th March 2013 as she was the only female candidate for Mandera County in the lists
the costs of this petition be borne by the 1st respondents. The same is capped at Ksh 100,000.
Issues in the judgment
#The judgment is dated '5TH OF FEBRUARY 2013' but recites events occurring after that date, including publications of 15/05/13, 19/05/13 and 21/05/13 and a gazette notice dated 17/07/13, indicating the delivery date is likely misdated (probably 2014)
Paragraph numbering restarts: the section headed 'THE APPLICABLE LAW' is numbered '5.' although a section 'ISSUES FOR DETERMINATION' was already numbered '5.'
The coram gives the judge's name as 'HON NYUTU' without any rank or initials
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Vision Party& another v Independent Electoral and Boundaries Commission & another [2013] KEMC 18 (KLR)", Case Analysis (2013). Election Petition (Mandera). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/18/eng@2013-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.