Mibei & 5 others v Kirui & 2 others (Election Petition E01 of 2022) [2022] KEMC 13 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of an election court over pre-election matters
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
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.
Alleged dual identity cards and forgery
Not proved; the online print-outs could not be verified without the input of the Registrar of Persons
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.
Criminal allegations and police clearance
Not proved; conflicting clearance certificates could not be adjudicated without the DCI/DPP, and a pending case cannot disqualify a candidate
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.
Split among petitioners and lack of supporting affidavits
The split among the Petitioners and absence of affidavits supporting the Petition was a fatal defect
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.
Legal principles established
#- 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
#- 1.The Petition is dismissed with costs to the 1st and 2nd Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.