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MagistrateDismissedPetition dated 13th September 2018 (as stated in judgment; record shows dates of 2017)

Mohamed Abass Sheikh v Boundaries Commission (IEBC) & 2 others [2018] KEMC 51 (KLR)

Chief Magistrate's Court at Meru
15 February 2018
LAL. Ambasi
11,054 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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Kenya's courts will not hear party-list nomination disputes unless you first exhaust the IEBC and Political Parties Disputes Tribunal processes.

What this practically means

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Executive summary

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The Petitioner, a Somali of the Murulle sub-community registered as a voter in Igembe South, Meru County, challenged the nomination of the 2nd and 3rd Respondents as Ethnic Minority/Marginalised representatives to the Meru County Assembly under Jubilee Party's list, published in Gazette Notice No. 8380 of 28th August 2017. He sought declarations that their nominations were null and void, that he was the proper nominee, and an order compelling the IEBC to gazette him. He had appeared as No. 8 on the party's list while the 2nd and 3rd Respondents occupied positions 1 and 2. All Respondents contested the court's jurisdiction, the Petitioner's locus, and his candidature. At trial the Petitioner conceded under cross-examination that he had no evidence of his Murulle/Somali identity in his documents, that he was last on the list, and - materially - that he had earlier sued Jubilee Party at the Political Parties Disputes Tribunal (Case No. 499 of 2017) seeking to be moved from position 8 to 1, a claim dismissed for want of evidence, which he had not disclosed to this Court and had not appealed. The court framed a single threshold issue: jurisdiction. Applying the Lillian S doctrine and the statutory scheme in Sections 74(1) of the Elections Act, Section 4 of the IEBC Act and Sections 39-41 of the Political Parties Act, the court held that Party List nomination disputes belong to the IEBC's dispute mechanisms and the PPDT, that Articles 165 and 258 do not displace those mechanisms, and that the Petition was an attempt to re-litigate, through a constitutional petition, a matter barred by res judicata. The Petition was dismissed with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to determine the Petition challenging nominations to the Meru County Assembly Party List

Key legal issues

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01

Jurisdiction of the Magistrates' Court over disputes arising from Party List nominations to a County Assembly

Holding

The court lacks jurisdiction; such disputes belong to the IEBC's dispute mechanisms and the PPDT, with appeals lying to the High Court

Reasoning

Section 74(1) of the Elections Act and Section 4 of the IEBC Act vest responsibility for nomination disputes in the Commission, while Section 40 of the Political Parties Act vests party-related nomination disputes in the PPDT, with appeals to the High Court under Section 41(2). The Petitioner had already litigated substantially the same complaint at the PPDT without appeal, and the Court cannot entertain what is in substance an appeal disguised as a constitutional petition.

p. 19
02

Res judicata and non-disclosure of prior PPDT proceedings

Holding

The Petitioner covertly re-litigated a PPDT complaint dismissed for want of evidence, without disclosing it; the Petition is barred by res judicata

Reasoning

The Petitioner had sought at the PPDT (Case No. 499 of 2017) to have his name moved from position 8 to position 1 on the Jubilee Party list. The Tribunal dismissed the claim for lack of evidence and he did not appeal. He failed to disclose these proceedings to this Court, disclosing them only under cross-examination, and admitted the non-disclosure was material.

p. 19

Legal principles established

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  • Party List nomination disputes must first be taken to the IEBC's dispute resolution mechanisms and the Political Parties Disputes Tribunal; Articles 165 and 258 do not substitute those statutory mechanisms
  • The IEBC cannot re-arrange or disregard a political party's preferred order of candidates in a party list
  • It is the political party, not the courts or IEBC, that determines which of its members appear on a party list, in which category and in what order

Court orders

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  1. 1.Dismissal of the Petition
  2. 2.Petitioner condemned to pay costs to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

LA
majority

Wrote the judgment

Jurisdiction invoked
Articles 165, 258 and 87 of the Constitution; Elections Act; Political Parties Act - jurisdiction contested, court held it lacked jurisdiction

Relief refused

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Declaration that the nomination of the 2nd and 3rd Respondents in Gazette Notice No. 8380 dated 28th August 2017 is null and void

Court lacked jurisdiction over Party List nomination disputes

p. 19

Declaration that the Petitioner is the proper and valid Ethnic Minority nominee

Court downed its tools for want of jurisdiction; res judicata and non-exhaustion of statutory remedies

p. 19

Order directing the 1st Respondent to gazette the Petitioner in place of the 2nd and 3rd Respondents

No jurisdiction; Jubilee Party, which prepared the list, was not a party

p. 19

Costs

Petitioner condemned to pay costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having answered the question of jurisdiction in the negative, I am inclined to down my tools at this juncture for this is not the appropriate forum and time to address the issues raised in the Petition.
p. 20Disposition - downing tools for want of jurisdiction
In light of my findings above, I hereby dismiss the instant Petition and condemn the Petitioner to pay costs to the Respondents.
p. 20Final orders - dismissal and costs
From the aforegoing, I have no doubt in concurring with the Respondents’ submissions and I hereby hold and find that this court lacks the jurisdiction to litigate on this Petition.
p. 19Holding on jurisdiction
The existence of Articles 165 and 258 of the Constitution is not a substitute or a means of excluding such other dispute resolution organs and agencies from exercising their statutory duties.
p. 16Constitutional jurisdiction not a substitute for statutory remedies
The Petitioner is attempting to cleverly re-litigate the same issue that he unsuccessfully raised at the PPDT but he is barred by the rules of res judicata.
p. 19Res judicata

Issues in the judgment

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material

The Petition is stated as filed on 13th September 2018, yet the affidavit in support was sworn on 8th September 2017 and the Supporting Affidavit relied on at trial was filed 13/9/2017; the judgment itself is dated 15th February 2018, before the stated filing date

minor

Internal contradiction in the findings on the PPDT outcome - the court first states the Tribunal granted the Petitioner's wish, then elsewhere that the Tribunal made no orders

minor

The 3rd Respondent's Response is stated as filed on 16th October 2018 in one passage and 16th October 2017 in another

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, "Mohamed Abass Sheikh v Boundaries Commission (IEBC) & 2 others [2018] KEMC 51 (KLR)", Case Analysis (2018). Petition dated 13th September 2018 (as stated in judgment; record shows dates of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/51/eng@2018-02-15

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