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MagistrateDismissedElection Petition No. 24 of 2017· [2017] KEMC 34 (KLR)

Samira Abdirahman Hassan v Independent Electrol and Boundaries Commission & 8 others [2017] KEMC 34 (KLR)

Chief Magistrate's Court at Nairobi, Milimani Law Courts
19 December 2017
7,438 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a county assembly woman nomination, ruling that ethnicity doesn't matter for gender top-up seats and challengers must prove their case to a heightened standard.

What this practically means

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Executive summary

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The petitioner, a NARC-Kenya member placed fourth on the party's gender top up list for Mandera County Assembly, petitioned to strike out the names of the 5th, 6th and 7th respondents from the list, to revoke Gazette Notice No. 8380 gazetting the 5th respondent, and to have herself gazetted instead. She alleged the three respondents gave false information about their ethnicity (claiming Gabra, Rendile and Oromo identities when Bureau of Statistics records showed Dagodia), that the 5th respondent was not a registered voter in Mandera County, and that the 5th and 6th respondents being registered in the same ward violated constitutional principles of equitable representation. IEBC maintained it acted lawfully by gazetting the nominee appearing first on the list under section 36(8) of the Elections Act, NARC-K having won only two elective seats and qualified for one nomination slot, and challenged the court's jurisdiction. The court framed six issues and held: ethnicity is not a consideration for county assembly gender top up nominations and the petitioner failed to prove the alleged false particulars to the heightened standard required in election petitions; the 5th respondent was presumed to have met party voter registration requirements; no law bars same-ward nominees; the party list was validly submitted, published and is not amenable to amendment during the term; and the 5th respondent was validly nominated and gazetted. The court also found the petitioner failed to exhaust internal party, IEBC and Political Parties Tribunal dispute mechanisms but determined the petition on merits. The petition was dismissed with capped costs against the petitioner.

Key legal issues

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01

Whether false ethnicity information was given and whether ethnicity matters in gender top up nominations

Holding

Petitioner failed to prove the alleged false particulars; in any event ethnicity is not a consideration for county assembly gender top up nomination

Reasoning

Article 90(2)(c) requiring regional and ethnic diversity expressly excludes county assembly seats. The petitioner relied only on annexed documents from the National Bureau of Statistics without an affidavit or witness from that office, and given the heightened standard of proof in election petitions, the evidence did not suffice.

p. 8
02

Whether the 5th Respondent was a registered voter in Mandera County

Holding

By inclusion in the party list she must have met party requirements including proof of voter registration; no contrary evidence was availed

Reasoning

The party's nomination rules required proof of registration as a voter before inclusion in the party list. Since the 5th respondent's name was included and the petitioner adduced no evidence to the contrary, the court presumed compliance with the party's nomination requirements.

p. 8
03

Whether two nominees registered in the same ward rendered the list a nullity

Holding

No constitutional or legal provision bars persons registered in the same ward from being nominated; no violation established

Reasoning

Neither the party's nomination rules nor the Elections (Party Primaries and Party List) Regulations 2017 contain such a bar. The main consideration for gender top up nomination is gender, and Articles 81(b) and 100 principles were not shown to be breached.

p. 9
04

Whether the 5th Respondent was validly nominated and gazetted

Holding

Yes - she topped the party list and NARC-K was entitled to only one slot, so IEBC correctly gazetted her per section 36(8) of the Elections Act

Reasoning

The final party list was submitted 45 days before the election and published as required. The list is valid for the term of the county assembly and cannot be amended under section 34(10) of the Elections Act. No valid reason was advanced to interfere with it.

p. 10
05

Jurisdiction and exhaustion of dispute resolution mechanisms

Holding

Though the court found the petitioner failed to exhaust internal, IEBC and Political Parties Tribunal mechanisms, it proceeded to determine the petition on merits

Reasoning

Regulation 27 of the Elections (Party Primaries and Party List) Regulations 2017, Article 88(4)(e) and section 74(1) of the Elections Act, and section 40 of the Political Parties Act provide dispute mechanisms the petitioner bypassed. The court nonetheless determined the petition on its merits since it had already heard it.

p. 12

Legal principles established

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  • Ethnicity is not a factor for consideration in nomination for county assembly gender top up seats; the consideration is gender
  • The standard of proof in election petitions is higher than the civil standard of balance of probabilities but lower than the criminal standard
  • A party list submitted as required by law is valid for the term of the county assembly and is not amenable to amendment
  • A litigant must exhaust statutory dispute resolution mechanisms before rushing to court by way of constitutional petition

Court orders

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  1. 1.The petition is dismissed
  2. 2.Declared Nasra Noor Mohammed as validly nominated by NARC-Kenya and gazzetted in Gazette Notice No. 8380 Vol. CXIX No. 124 of 28th August 2017 as a Member of the County Assembly of Mandera on the gender top up category
  3. 3.Petitioner to bear costs of the petition: costs to the 1st respondent capped at Kshs. 200,000; costs to the 2nd, 3rd, 4th and 5th Respondents capped at Kshs. 100,000 each
  4. 4.No costs awarded to the 6th and 7th Respondents and to the 1st and 2nd interested parties
Jurisdiction invoked
Constitution of Kenya 2010, Elections Act 2011 and Elections (Parliamentary and County Elections) Petitions Rules - election court jurisdiction over nomination/party list disputes

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, "Samira Abdirahman Hassan v Independent Electrol and Boundaries Commission & 8 others [2017] KEMC 34 (KLR)", Case Analysis (2017). Election Petition No. 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/34/eng@2017-12-19

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