1.The 1st respondent Margaret Njeri Mwaura filed a complaint against the appellants seeking their nullifications as the nominated members of the County of Nyeri and the declaration that she was validly nominated by the 3rd respondent (UDA) to the position of the members of County Assembly of Nyeri. Her complaint was based on the 3rd respondents list published on the 27th July 2022 in the Standard News Paper where the 1st respondent alleged that she was one of the 3rd respondents nominees to the County Assembly of Nyeri at number 7. The 1st respondent stated that her name was missing when the 2nd respondent published the list of nominees in the Kenya Gazettee notice no.10712 and instead included the appellants at position No.5 and 7. This Gazettee notice was the one used to nominate the appellants to the 4th respondent. The 1st respondent alleged that her rights were violated due to the illegal deletion and irregular amendment of her name from the Party List that was substituted by the 3rd respondent (UDA).
2.On March 3, 2023Hon. Mathias Okuche in Nyeri Election Petition No. E004 of 2022/delivered a Judgment to the effect that the election of 3rd and 4th respondent was illegal and unlawful and granted the prayers sought in the petition dated 20th September 2022 and directed the 4th respondent to effect the orders by swearing in of the 1st respondent.
3.Being aggrieved of the orders contained in that Judgement the two appellants decided to lodge this appeal on the following grounds:-1.The learned Magistrate erred in law by failing to appreciate the laid down Principles of Law in determining whether the appellants were duly nominated by the 3rd respondent in accordance with the Elections Act.2.The Learned Magistrate erred in Law by taking into account the ruling of the 3rd respondents internal Disputes Resolution Committee whereby he considered the decision therein binding on the 2nd respondents, to the detriment of the interests of the appellants as a result violating their rights which are guaranteed under article 47, 48 and 50 of the Constitution of Kenya.3.That the learned Magistrate erred in Law in failing to find that the 1st respondent had not pleaded that she had instituted a dispute to the 3rd respondent’s internal Dispute Resolution Committee which concerned the appellants thereby denying the appellants chance to address the issue which is a cornerstone of fair hearing.4.That the Learned Magistrate erred in Law in disregarding the evidence that the appellants were also nominated by the 3rd respondent thereby arriving at wrong conclusion.5.That the Learned Magistrate erred in Law in failing to appreciate that there was no evidence that the Ruling delivered by the 3rd respondents Internal Dispute Resolution Committee was served upon the 2nd respondent before the gazettement of the notice nominating the appellants.6.The Learned Magistrate erred in law in finding that the appellants nomination was illegal and unfair without proof that the appellants had contributed to the 3rd respondent’s failure to nominate the 1st respondent to the County Assembly of Nyeri as published in the 2nd respondents Gazette Notice.7.The Learned Magistrate erred in law by failing to appreciate that the appellants were not joined as Parties in the 1st respondents dispute at the 3rd respondents internal Dispute Resolution Committee and thereby no orders affecting their interests could be made without their participation.8.That the Learned Magistrate erred in Law by failing to take into account submissions by the appellants.
4.The two appellants seek for the appeal to be allowed and the Judgment of the lower court and the decree to be quashed and set aside. The other consolidated appeal which was No. E004 of 2023 was consolidated with E001 of 2023. The appellant therein is the Independent Electoral and Boundaries Commission. It arises from the Judgment of Hon. Okuche SPM in Nyeri Election Petition No. E004 of 2022The grounds are as follows:-