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MagistrateDismissedE001 of 2022· [2022] KEMC 13 (KLR)

Mibei & 5 others v Kirui & 2 others (Election Petition E01 of 2022) [2022] KEMC 13 (KLR)

Environment and Land Court / Magistrates' Court (Senior Principal Magistrate's Court, Kericho)
28 November 2022
3,353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Kericho court dismissed an election petition challenging an MCA's election, finding allegations of dual identity and forgery unproven and the petition itself fatally defective.

What this practically means

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Executive summary

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The 1st to 6th Petitioners, all voters at Chemobei Polling Station, petitioned to set aside the declaration of the 2nd Respondent, Kipngeno Kirui alias Alfred Kimutai Kirui, as Member of County Assembly for Tebesonik Ward, Bureti Sub-County, Kericho County, following the August 9, 2022 General Election, and to nullify the election. They alleged that the 2nd Respondent masqueraded as a voter using two different identity cards under two names and two dates of birth, forged documents in submission to the 1st Respondent and the police, and lacked integrity under Chapter 6 of the Constitution, while blaming the 1st Respondent for clearing him without due diligence. The 1st Respondent denied any non-compliance, argued that no complaint was lodged before the IEBC or PPDT, and that the petition concerned nomination rather than the conduct of the election. The 2nd Respondent denied holding more than one identity card and termed the petition a vexatious afterthought. The court, relying on the Supreme Court's decision in Silverse Lisamula Anami v IEBC, confirmed it had jurisdiction to examine pre-election issues of eligibility where these had not been conclusively determined elsewhere. It nevertheless found the allegations unproved: the online print-outs could not establish dual identity without the Registrar of Persons' input; conflicting DCI clearance certificates could not be adjudicated without the DCI/DPP; and a pending criminal case could not disqualify a candidate enjoying the presumption of innocence. Further, following County Assembly Forum, no academic qualification is required for MCA candidates. The split among the Petitioners and the absence of supporting affidavits proved fatal. The petition was dismissed with costs to the 1st and 2nd Respondents, borne by the 1st, 3rd and 4th Petitioners only.

Key legal issues

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01

Jurisdiction of an election court over pre-election matters

Holding

The court has power to examine pre-election issues of eligibility in testing the validity of an election, provided the issues were not conclusively determined elsewhere

Reasoning

Applying the Supreme Court's decision in Silverse Lisamula Anami v IEBC, the court held that an election court entrusted with examining the validity of an election may investigate issues of eligibility arising pre-election, including registration and clearance, where no prior determination exists. The Petitioners had raised no complaint before the IEBC or PPDT, so the court could examine the issues.

p. 5
02

Alleged dual identity cards and forgery

Holding

Not proved; the online print-outs could not be verified without the input of the Registrar of Persons

Reasoning

The court could not ascertain whether the two names and identity numbers referred to the same individual, given the absence of evidence from the Registrar of Persons and the 2nd Respondent's categorical assertion that he holds only one identity card. The allegations of forgery and questionable character under Chapter 6 were therefore not established.

p. 6
03

Criminal allegations and police clearance

Holding

Not proved; conflicting clearance certificates could not be adjudicated without the DCI/DPP, and a pending case cannot disqualify a candidate

Reasoning

Two DCI clearance certificates were exhibited, one showing no offence and one showing a charge of stealing with no trial outcome. The court could not tell which was genuine without the input of the DCI/DPP, and the presumption of innocence protected the 2nd Respondent.

p. 6
04

Split among petitioners and lack of supporting affidavits

Holding

The split among the Petitioners and absence of affidavits supporting the Petition was a fatal defect

Reasoning

Three of the six Petitioners did not consent to the Petition, and only the 1st Petitioner swore the verifying affidavit. Relying on Lesirma Simeon Simanga v IEBC, the court held this defect fatal, not curable as a technicality.

p. 7

Legal principles established

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  • An election court may examine pre-election issues such as eligibility of a candidate only to the extent that they have not been conclusively determined by the IEBC, PPDT or the High Court
  • Following County Assembly Forum, an MCA candidate need only satisfy the requirements of Article 193 of the Constitution, there being no law imposing academic qualifications
  • A pending criminal case cannot be used against a candidate who must be presumed innocent
  • Lack of supporting affidavits due to a split among petitioners is a fatal defect, not a mere technicality

Court orders

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  1. 1.The Petition is dismissed with costs to the 1st and 2nd Respondents
  2. 2.Costs to be borne by Petitioners 1st, 3rd and 4th only; the 2nd, 5th and 6th Petitioners are not condemned to costs
Jurisdiction invoked
Election petition under the Elections Act and Articles 88(4)(e), 105(1) and 193 of the Constitution

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, "Mibei & 5 others v Kirui & 2 others (Election Petition E01 of 2022) [2022] KEMC 13 (KLR)", Case Analysis (2022). E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/13/eng@2022-11-28

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