Harold Grant Platt, James Patrick Trainor, Alfred Henry Simpson
High Court at Nairobi (Milimani Law Courts)
Ali v Gethinji
High Court, at Nairobi June 30, 1980
Simpson, Platt & Trainor JJ
Election Petition No 18 of 1979
Election Petition – qualification for election - to National Assembly –proficiency in English and Kiswahili languages – section 34 of the Constitution – language tests under the Presidential and Parliamentary Elections Regulation – failure of election candidate to attend language board test – absence of certificate of proficiency issued by language board - effect of – whether such candidate qualified to be elected – whether Second Schedule to Parliamentary and Presidential Elections Regulations ultra vires the Constitution.
Criminal law – election offence – meaning of – election candidate procuring person to impersonate him in language test prescribed under Parliamentary and Presidential Elections Regulations – whether candidate’s act an election offence.
The two petitioners and the second respondent were among the rival candidates for the Garissa South Parliamentary Constituency preliminary election and the first respondent was the area’s District Commissioner and also the Returning Officer for the election, which was won by the second respondent. The petitioners filed a petition alleging that the election had not been conducted in accordance with the law and sought a declaration that it was null and void. In their main ground, they alleged that the second respondent was not proficient in the English and Swahili languages as envisaged under section 34 of the Constitution in a manner qualifying him for election and evidence was adduced in support of this ground. It was submitted that no certificate of competency had been issued to him by a Language Board set up under the Second Schedule to the Presidential and Parliamentary Elections Regulations and if any, then it had been issued by means of fraud or personation. Among the issues raised in the defence of the second appellant, who chose not to give evidence in rebuttal of the allegations made against him, was that the Second Schedule was ultra vires the Constitution.
1. The Second Schedule to the Presidential and Parliamentary Elections Regulations and Regulation 4 of those regulations were not ultra vires the Constitution as section 32 of the Constitution which provided for the election of members of the National Assembly in a manner prescribed by or under any law was wide enough to cover, for its purposes, the provision of a method of determining a candidate’s proficiency in the Kiswahili and English languages.
2. The language tests prescribed in the Second Schedule to the Presidential and Parliamentary Elections Regulations, where applicable, were part of the nomination process of a candidate to the National Assembly within section 34(d) of the Constitution.
3. The second respondent was not exempted from the language test and there was clear and unequivocal proof that he had not taken the test but had instead procured another person to take it in his place.
4. The second respondent was not a person qualified to be elected as a member of the National Assembly in that not being exempted from language tests in English and Kiswahili, he failed to present himself to be tested by a language board, that he was not in possession of a certificate of proficiency issued by such board and that he was not able to speak and to read the Kiswahili and English languages well enough to take an active part in the proceedings of the National Assembly.
5. The second respondent was neither validly nominated nor validly elected as a Member of the National Assembly.
6. Qualification for election is a condition precedent for election and section 28 of the National Assembly and Presidential Elections Act (cap 7) was inapplicable in this case.
7. The act of the second respondent in procuring an unknown person to impersonate him did not constitute an election offence as defined in section 2 of the National Assembly and Presidential Elections Act (cap 7).
8. (Obiter) “We feel we cannot leave this petition without suggesting that provision be made to enable a presiding officer to record whether or not a complaint had been made during the day in any way affecting his conduct or the conduct of any of his officers and that the candidates and their agents be afforded an opportunity to sign such a record or to give the presiding officer a note of such complaints as they wish to have put on record. Such a provision might we think tend to reduce the number of complaints appearing in election petition[s]”.
1. Lichfield Case (1869) O’M & H 22 at p 28
2. Mohamed Noor Hussein v Mohamed Sheikh Ali Election Petition No 15 of 1970 (unreported)
3. Eliab Karanja v JM Kihanyo and Stephen Kiragu Election Petition No 37 of 1974 (unreported)
Hailsham, Lord et al. (Eds) Halsbury’s Laws of England, London: Butterworths 4th Edn Vol XV
1. Constitution of Kenya section 34, 34(d)
2. National Assembly and Presidential Elections Act (cap 7) sections 2, 28
3. Presidential and Parliamentary Elections Regulations (cap 7 Sub Leg) regulations 15(2), 17, 18, 18(1); 18(2); 29; First Schedule; Forms Nos 9, 10; Second Schedule
4. National Assembly Elections (Election Petition) Rules (cap 7 Sub Leg) rules 4, 5
Messrs S Gautama & O Kapila for Petitioners
Mr Shields & Mrs Onyango for 1st Respondent
Messrs AR Kapila & S Kapila for the 2nd Respondent