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Kalinga v Independent Electoral and Boundaries Commission & 10 others (Election Petition Appeal E087 of 2023) [2023] KEHC 22171 (KLR) (14 September 2023) (Judgment)
Neutral citation:
[2023] KEHC 22171 (KLR)
Republic of Kenya
Election Petition Appeal E087 of 2023
DKN Magare, J
September 14, 2023
IN THE MATTER OF THE ELECTIONS (GENERAL)
REGULATIONS, 2012
AND
IN THE MATTER OF THE ELECTIONS ACT (PARTY
PRIMARIES AND PARTY LISTS) REGULATIONS, 2017
Between
Mary Charles Kalinga
Appellant
and
Independent Electoral and Boundaries Commission
1st Respondent
Partun Mohamed Musa
2nd Respondent
Josephine Wairimu Kinyanjui
3rd Respondent
Augustine Ndegwa
4th Respondent
Mulki Abdullahi Adan
5th Respondent
Khadija Ngala
6th Respondent
Meldter I. Nyakiti
7th Respondent
Kengo Judy Chizi
8th Respondent
Ruwa Elizabeth Mwangola
9th Respondent
Teresia B. Muoki
10th Respondent
Rachael Katumbi Mutisya
11th Respondent
Judgment
Background
1.The Appeal herein arose from the Judgment and Decree dated 14th March 2023 delivered by Honourable Joe Omido, Senior Principal Magistrate in Kwale CMC Election Petition No. E 002 of 2022. In that case the court dismissed the petitioner’s petition with costs of Ksh 400,000/= to the 1st Respondent.
2.As a result of the decision the Appellant, who was the petitioner in the election court, filed this appeal on 13/4/2023. By law, I have up to 12/10/2023 to make this decision. The file was left lying in limbo for some time and even given a date in November. This was because, while e-filing the case, the Appellant filed the same in the civil registry as opposed to the Election Petition registry.
3.This matter was brought to court’s attention on 1/8/2023 during the vacation. We had to baby sit the Appeal during the vacation till 29/8/2023, when I gave today’s date for judgment. I had to go an extra mile to ensure this ruling is ready in 2 weeks.
4.I have noted some interested parties in the Election Petition. They have no room in this matter. Their work ended when they submitted party lists under the party lists regulations. They are not necessary parties in this appeal. The Election (parliamentary and county) Election Petition Rules recognise only petitioners and respondents.
5.The place of interested parties in civil litigation was settled by the Supreme court in the decision of Methodist Church in Kenya v Mohamed Fugicha & 3 others [2019] eKLR, where the Supreme Court by majority held as doth: -
6.The interested parties are not proper parties in such an Election Petition and Election Petition Appeal. No orders may be obtainable by them or against them. It is a waste of precious judicial time to include them as interested parties. The case belongs to the primary parties. I will say no more.
Pleadings
7.The Petition dated 7/10/2022 was filed the same date. In a short succinct petition, the Appellant herein sought the following reliefs:i.The Court be pleased to declare that special issue of the Kenya Gazette Notice vol. CXXIV No. 186, Kenya Gazette Notice No. 10712 dated 9/9/2022 is null and void to the extend that it fails to nominate to the County Assembly of Kwale a representative of the persons living with disabilityii.A declaration the nomination of the representatives of the County Assembly of Kwale contained in special issue of the Kenya Gazette Notice vol. CXXIV No. 186, Kenya Gazette Notice No. 10712 is unconstitutional in light of Article 8, 90 and 177 of the Constitutioniii.The nomination of the representatives of the County Assembly of Kwale be re-gazetted in compliance with Articles 177 of the Constitution and Regulation 562(2) of the Election Regulations.iv.Costs of the Petition be awarded to the Petitioner.
8.The 1st Respondent is the only one who validly replied to the Petition. The other parties reportedly filed their responses. The court struck out those Responses. There was no appeal from the order of the court. The documents stand struck out to date.
9.The matter was heard by way of submissions and not viva voce evidence. The effect on relying on documents is that they are not subjected to cross examination. They are thus deemed not be contested. In the case of Fidelity Commercial Bank Limited v Kenya Grange Vehicle Industries Limited [2017] eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-
10.The Election Court and this court will construct documents in a similar manner as there are no witnesses required to know the content of a document. The documents are usually self-explanatory. There need not be a factual decision on them.
The impugned decision
11.In its Judgement dated 14th March 2023, the election Court dismissed the Petition with costs of Ksh. 400,000/= to the 1st Respondent on the basis that the election by nomination of the Respondents conformed with the Constitution and electoral laws.
12.The election laws that were said to have been complied with are as doth:-a.The constitution in particular Articles 88, 90, 177.b.The Elections Actc.Elections (General) Regulations, 2012d.Elections Act (Party Primaries and Party Lists) Regulations, 2017
13.The Election Court also struck out all responses by all except the First Respondent’s response. This was due to noncompliance with Rule 11(1) as read with rule 19 of the Election (Parliamentary and County) Election Petition Rules, 2017. Unfortunately, the court indicated it was doing so under the Repealed Rule 14(1) of the Election (Parliamentary and County) Election Petition Rules, 2013).
14.There was no appeal on this particular aspect. All the petitioners supported the judgment thus inclusive of this portion striking out their responses. It is therefore conclusive that the petition was not opposed by the 2nd to 11th Respondents. This means that all factual allegations by the petitioner remain unchallenged. The 1st respondent, being a formal respondent can only answer to questions of compliance with the law.
15.The relevant rules which made the responses to be struck out are the Election (Parliamentary and County) Election Petition Rules, 2017, provides as doth: -
16.Though the First Respondent also filed their documents late, they nevertheless sought and were granted extension of time on 3/11/2022. The court considered its power to extend time as enunciated. The court relied on decisions binding on him, that is, Patrick Ngeta Kimanzi v Marcus Mutua Muluvi & 2 others [2013] eKLR, where justice Majanja stated as doth; -
17.The court also relied on the case of Elizabeth Jebet Kibor v Isaac Suaare Oseur & 5 others [2020] eKLR, where the court, E C Mwita stated as doth: -
18.Aggrieved by the finding the judgment of the Election Court, the Appellant lodged this Appeal vide its Memorandum of Appeal dated 17th April 2023 and raised the following grounds: -i.The Learned Trial Magistrate misrepresented, misapprehended and distorted the facts and the Application of aw in respect thereof.ii.The Learned Trial Magistrate erred in law and fact in finding that the election of the Respondents was in conformity with the electoral laws and Article 171 of the Constitution.iii.The Leaned Trial Magistrate erred in finding that the County Assembly of Kwale was properly constituted in the absence of a representative member being a person living with disability.iv.The Learned Trial Magistrate erred in law and fact in failing to appreciate that the 2nd, 3rd and 11th Respondents were neither residents nor registered voters of Kwale County and their nomination was thus in fragrant breach of Articles 38, 81 and 90 of the Constitution as read with Section 36(1) of the Constitution.
19.As such, the Appellant prayed that the Judgement and Decree of the elections Court be set aside and substituted with an Order allowing the Petition.
The jurisdiction of the appellate election court
20.This court being a first election appeal court has its jurisdiction circumscribed under section 75 of the Elections Act. The court has to determine only issues of law. In so doing the court will not be blind to the facts. This is so, in a case where an issue of law is determined then the court finds that the factual matrix which the court was to determine was not decided. However, in this case, there are only two sources of facts, the Appellant and the first Respondent.
21.What consists of points of law has been fluid. In the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, the court of appeal in determining points of law as a second court in civil matter, posited that: -
22.In the case of Mwathethe Adamson Kadenge v Twahir Abdulkarim Mohamed & 2 others [2013] eKLR, it was held as Doth: -
23.This was similarly decided in the case of Victoria Cheruto Limo & another v Independent Electoral and Boundaries Commission (IEBC) & another [2018] eKLR.
24.This court therefore has jurisdiction only in relation to matters of law. Though there is no definition of what constitutes matters of law, there have been judicial determination of this aspect.
25.My working definition of a point of law from distilling the judicial determinations it is a question of significant nature, either arising from a decision based on no evidence, or misinterpretation of a statutory, or regulatory edicts or a constitution.
26.In the case of Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR the court stated as doth: -
27.Further, in the case of Peter Gichuki King'ara Vs Iebc & 2 Others, Nyeri Civil Appeal No. 31 Of 2013 (Court of Appeal) (Visram, Koome & Odek, JJA) Of 13.02.2014, the Court of Appeal stated as doth: -
28.Whereas in this case, the court did not proceed on viva voce evidence, the court has latitude but cannot delve into the issue of fact, unless such fact is based on no evidence.
Issues for determination
29.The Court has reviewed and considered the pleadings, Affidavits and written submissions by counsel in support and opposition to the Appeal. The Court has also considered authorities relied on by the parties in the appeal. I have found that the only issue for determination is whether the Election Court erred in law in finding that the Appellants had failed to prove their case.
30.In determining the identified, issue there are 4 sub-issues in addition to costs: -a.Whether the 2nd to 11th Respondents were validly elected through nomination under Elections Act (Party Primaries and Party Lists) Regulations, 2017.b.Where the failure to nominate people living with disabilities is unconstitutional, null and void.c.Whether nominated members need to have either residence or voters registration in the county of nomination.d.What reliefs commend themselves.e.Who is to bear costs of the petition and the Appeal.
Burden of proof
31.The Burden of proof in election matters of this nature has been litigated over time and settled by the superior courts in this land. This court shall not belabor the same. On that I shall ride on the shoulders of giants. I shall not re-invent the wheel. Egyptians did so years ago.
32.Burden of proof in these matters was enunciated well by the supreme court in the case of Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR) (Election Petitions) (20 September 2017) (Judgment) (with dissent - JB Ojwang & NS Ndungu, SCJJ), where the court stated as doth: -
33.On the other hand, the standard of proof has been settled by the Election Petitions over time the Supreme court in the case of Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); (supra) held as doth: -
34.Therefore, I will not use the criminal standards. In this kind of nominations, the standard of proof is real on a balance of probabilities. Even where it is indicated to be slightly more than the balance of probabilities, it is simply a higher balance. There are no malpractices involved. It is interpretation of the law. Whether the thing happened or did not happen.
Parties submissions
35.Before embarking on the issues that would fall for this Court’s determination, I wish to set out in summary the parties’ contentions as captured from the Record filed in the Election Court, albeit with due regard to the position that this Court is entitled to deal only with matters of the law at this stage. I will also capture the submissions of parties. Given the length of the submissions and the cross-cutting submissions, if for any reason I do not set the submissions out in full, it is not for lack of industry on part of counsel or time on part of the court but do to economy of space and avoidance of repetition. I have otherwise fully considered the well written and researched submissions.
The appellant’s submissions
36.In this Appeal, the Appellant raised grounds inter alia: -a.The nomination of the Respondents did not comply with Article 81 of the Constitution as the elections were not transparent, free and fair and overlooked representation of persons with disabilities.b.The number of seats available for allocation to the political parties was 13 and the Commission flawed Article 177(1)(b) and (c) of the Constitution, Section 36 of the Elections Act and Regulation 56(2) of the Elections (General) Regulations by allocating the Interested Parties only 10 slots cumulatively instead of 13.c.There was no compliance with the dictates of Articles 38, 81(1)( c) and 177(1) with respect to persons with disability as no person living with disability was nominated and in breach of Article 90 of the Constitution on proportional representation.d.Further, the nominations were shambolic and a nullity because there was no the 2nd 3rd and 11th Respondents though nominated were not registered voters or residents and so lacked the ethnic diversity of Kwale County as required under Article 88 and 90 of the Constitution.”
37.The Petitioner relied on Article 177(1) (b). and Section 36 (1) of the Elections Act which stipulate as follows: -a.party list submitted by a political party under-i.Article 177(1) (b) of the Constitution shall include a list of the number of candidates reflecting the number of wards in the county;ii.Article 177(1) (c) of the Constitution shall include eight candidates, at least two of whom shall be persons with disability, two of whom shall be the youth and two of whom shall be persons representing a marginalized group.iii.A party list submitted under sub section (1) (a), (c), (d), (e) and (f) shall contain alternatives between male and female candidates in the priority in which they are listed.” (Emphasis theirs)
38.The Appellant also sought reliance inter alia, on Lydia Nyaguthii Githendu v The Independent Electoral and Boundaries Commission (Iebc) & 17 others [2015] eKLR where the Court of Appeal stated as follows: -
First Respondent’s Submissions
39.On its part, the 1st Respondent, Independent Electoral and Boundaries Commission respondent inter alia that:i.The Commissions published the requirements for party and Political Parties submitted 79 lists none of which complied with electoral laws and the same was communicated to the Political Parties.ii.The Political Parties resubmitted the lists which the Commission found compliant and the Commission published in two national wide circulation Newspapers.iii.The lists as published were not final and the Commission gave any aggrieved persons to raise any disputes before the relevant bodies.iv.The Appellant thus ought to have filed her complaint at the Political Parties Dispute Tribunalv.The Commission acted in accordance with the law in publishing the impugned Gazette Notice.vi.The available seats were ten, four of which were to be automatically allocated as special seats under Section 38(6) of the Elections Act and Article 177(1) of the Constitution.vii.That the total number of seats could only be 24, 20 elected and 4 special seats and marginalized category.viii.There was no legal requirement that a person nominated must be a resident of the particular county.
40.The 1st Respondent relied inter alia on the case of Linet Kemunto Nyakeriga & another v Ben Njoroge & 2 others [2014] eKLR where the Court of Appeal stated as follows: -
41.It was further stated, in Linet Kemunto Nyakeriga & another v Ben Njoroge & 2 others [supra] that: -a.closed list and open list. Whatever the case, in the party list, as the name suggests, each party lists its candidates as it may be entitled.”b.In an open list system, the voters have the freedom of expressing their preference for a particular candidate in the list. The names in the list are not in any order of priority but are randomly arranged.c.The order of the final list will depend on the number of votes received by each candidate in the list, with the most popular candidate rising to the top of the list thereby enhancing his/her chance of being elected.
42.They submitted that the list serves as a reservoir of candidates in any of the eventualities enumerated above. It is clear from what we have said up to this point that the IEBC, in a closed list system has no power to rearrange the list or pick out from the list any other candidate apart from the parties’ preferred candidate listed at the top of the list if only one candidate is required.
2nd Respondent’s Submissions
43.The second Respondent defended the 10 seats allocated. She states that the Appellant had not indicated how the Court misinterpreted misapprehended or distorted facts.
44.Further they state that the Appellant did not show how the nominations done by Pamoja African Alliance can lead to the nullification of the 2nd Respondents nomination by Orange democratic Movement where the appellant is not a member.
45.It is her view that the formula under Regulation 56 of the Election (General) Regulation 2012 is that the number of seats won by a political party are divided by the total seats multiplied by available seats a for allocation in the respective House.
46.The allocation of the 4 slots and 6 slots for marginalized was supported. To them, a party list is on priority, and thus those appearing are the only ones to receive the slots. They point out that the gender top up, reduced from 10 in 2017 to 6 in 2012 due to the matrix related to the elected members of the county assembly Only 6 women were required to fulfil the 2/3 Rule. The marginalized required 4. She argues that the Appellant has no case against her.
47.As Regards the third ground of Appeal, the Second Respondent relied on was residence in Kwale and Registration as a voter in Kenya. Though she they do not contest that she was registered in Isiolo county as a voter, she stated that she is a resident. She drills boreholes with the husband around mosques in Kwale. She stated that only requirement was to be a registered voter. She placed reliance on the case of Esther Okenyuri Anyieni v Mokumi Edmond Anthony & 3 others [2018] eKLR, where my elder sister Ougo J, held as follows: -
48.She submitted that a challenge that she is not registered in Kwale is bad in law. Non-registration in Kwale is conceded, but the questions are whether she is a resident and whether there is such a requirement to be a resident.
49.They stated that the court cannot inquire into a question of fact. She states that the 2nd Respondent owns property in Kwale through her husband and sinks boreholes in Kwale county.
50.The only issue they did not address was in regard to the effect of the facts submitted on the face of the reality that the judgment they defend expunged the 2nd to 11th Respondent’s responses and there is no Appeal from such expunging.
51.On the 4th ground, the 2nd Respondent stated that the Appellant is only aggrieved by the 4th Interested party allocation. The same should not be deal with ODM nominees. They contend that the Appellant was fighting for a nomination for herself.
52.On ground 5, the persons with disability, they stated that the persons on top are given priority. The 2nd respondent was nominated under youth category and: -a.A person living with Disability was in the second slot. The 2nd Respondent got the nomination.b.PAA did not nominate any person with disability. If this is correct, then, the list submitted by PAA was not correct constitutionally. It means that PAA has to forego that seat for incompleteness. Such attitude shows what powers that be, view the people living with disability.c.They argue that Augustine Ndegwa was listed in the 2nd slot and as such UDA nominated Augustine Ndegwa.d.UDM nominated Mulki Abdulahi Adan, under ethnic minority when a person with disability was third.
53.They have addressed ground of jurisdiction. I shall deal with this in the analysis.
54.The issue whether the appellant was not entitled to be nominated is said not to be meritorious as her party had only 2 slots. They have also challenged the competence of the petition. I shall not address the same as there is no cross Appeal.
55.They also filed supplementary submissions. However, she did not address one fundamental question. They did not have responses on the file as they were filed late and struck out. There was no appeal or cross appeal in that respect. This is because the facts she was submitting on were not in court.
The 3rd Respondent’s submissions
56.The 3rd Respondent filed written submissions dated 28/8/2023, where she submitted inter-alia that the election Court correctly dismissed the Appellant’s case. To buttress this point, it was submitted that there was no law requiring a nominated member to be from the same county and the 3rd Respondent resided in Kwale County and not Kilifi County.
57.The 3rd Respondent relied on Article 193 (1) of the Constitution and Section 25 of the Elections Act. Reliance was placed on the case of Esther Okenyuri Anyieni Vrs Mokumi Edmond Anthony & 3 Others (Supra) eKLR. It was their further submission that the Appellant failed to discharge the burden of proof in election cases which was above a mere balance of probabilities.
4th Interested Party and the 11th Respondent
58.The 4th Interested Party and the 11th Respondent submissions dated 1/9/ 2023. They raised three issues and submitted inter alia that the Trial Court rightly dismissed the Petition. They submitted that the Appellant was not member of the 4th Interested Party and as such cannot purport to challenge the nomination of the 11th Respondent.
59.It was their considered submission that the Election Court correctly found that it had no jurisdiction to entertain disputes that arose prior to the publication if the Gazette Notice No. 10712. They relied on the decision of Mohammed Abdi Mahamud vrs Ahmed Abdullahi Mohamad & 3 Others (2019) eKLR. They submitted that Article 193 (1) of the Constitution and Section 25 of the Elections Act have no provision requiring a nominee to be a resident of the same county. As was usual with these submissions the case of Esther Okenyuri Anyieni (supra) became handy.
60.Further, it was the submitted that the court correctly found that the 1st Respondent used the correct formula in allocating the seats in accordance with Articles 90 and 177(1) (b) and (c) of the Constitution and Section 36(9) of the Elections Act.
61.Further, it was submitted that where the law did not provide for an allocation of the seats in case of a tie and so the 1st Respondent was correct in devising means to prevent unconstitutional ends by reasonable judgment and procedure as correctly held by the Election Court. Reliance was placed on the case of Harold Kimunge Kipchumba vrs Independent Electoral & Boundaries Commission & Another (2017) eKLR.
62.They further submitted that the Party List was a closed list and once submitted for elections could not be amended as provided for under Section 13 (2) of the Elections Act and as settled in the supreme court case of Moses Mwirici & 14 Others Versus Independent Electoral & Boundaries Commission (2016) eKLR. It was their considered view therefore that the Appellant had not met the burden of proof and the lower court was correct in dismissing the Petition.
The 5{{^th} Respondent submissions
63.The 5th Respondent filed the written submissions dated 17th August 2023 where he submitted that in allocating seats to the political parties, the 1st Respondent correctly applied the formula in Regulation 56(2) of the Elections ( General Regulations), 2012, being, the number of seats won by a political party divided by the total number of seats divided by the total number of seats available for allocation and in this case, every party could not have a member as the formula locked them out.
64.They urged me to dismiss the petition as baseless. They urged that the appeal was field out of tie contrary to the constitutional timelines set out in section 76 (1) of the elections Act. The said section provides as doth: -
65.They also rely on Article 87 of the constitution. The same provides as follows: -
66.Sincerely speaking, I did not understand what they were saying with this kind of submissions. The articles and sections referred to are totally irrelevant. We are not dealing with a petition under section 76 or article 87 but an Appeal under section 75 of the elections act which provides for:
67.She raised issue with the Appeal being field as a civil Appeal and not an election Appeal. This is also much ado about nothing. I am enjoined to have regard to determination of disputes without undue regard to technicalities. This is circumscribed under Article 159 of the constitution.
The 6th and 7th Respondents
68.The 6th and 7th Respondents filed their joint written submissions dated 28th August 2023 through which they submitted inter alia that the total number of the slots available for allocation was 10 and not 14 as contented by the Appellant and the final list was to be picked on priority basis.
69.It was further submitted that the 1st Respondent complied with Article 177 1) (c) of the Constitution. Further, that there was no requirement that the nominee be a resident of the County and so it would not matter that the 6th and 7th Respondents were residents of Kwale County. Reliance was placed on Articles 90 and 177 of the Constitution and Section 26 (8) of the Elections Act as well as Regulations 54, 55 and 56 of the Elections (General Regulations), 2012.
70.It was their submissions that in the absence of legislation to guide scenarios of a tie, the 1st Respondent was correct in its decision to prevent unconstitutional ends as correctly held by the trial court. Reliance was placed on the case of Harold Kimunge Kipchumba vrs Independent Electoral & Boundaries Commission & Another (2017) eKLR (supra).
71.It was also submitted that on jurisdiction, the trial court correctly exercised its jurisdiction as an election court under Article 87(1) of the Constitution and Section 74 of the Elections Act.
4th,8th and 9 Respondents submissions
72.I have not had sight of the submissions by the 4th, 8th and 9th Respondents Represented by Rashid Mbwiza.
The 10th Respondent’s submissions.
73.The 10th Respondent filed its written submissions dated 29th August 2023, where she submitted that the 10th Respondent was duly nominated and satisfied the conditions under Article 193 (1) of the Constitution.
74.Counsel submitted that Section 34(5) of the Elections Act was followed because more slots than 10 could not be provided because the list was filled and closed and the 10th Respondent was among the top in the list.
75.She submitted that as required under Regulations 54, 55 and 56 of the Elections (General Regulations), 2012, the party lists were in accordance with the Parties’ Rules and the formula of the allocation of Rues which the trial court correctly established.
76.Lastly, it was the submission of Counsel that there was no requirement that one be a registered voter in the place they apply to be nominated and relied on the case of the Violation by Non-Inclusion of the Persons Living with Disabilities in Kisii County Assembly (2018) eKLR.
Analysis
77.The appeal and petition before the court reminds me of the scenario in the late 1990s where a Chief Justice of this country struck out a constitutional petition for being incompetent, since he, had failed to gazette rules, which were to provide how the court was to be approached.
78.The court’ duty is circumscribed. It will rely on findings of fact unless the findings are such that no reasonable tribunal properly looking at the same facts could come to the same conclusion.
79.The parties are also under duty to have proper pleadings. Any evidence that is tendered, without supporting pleadings does not help any party. The evidence on record and submission by parties is that virtually all the nominees who were elected are not registered voters in Kwale county. It is a big indictment of the people of Kwale on their inability to produce leaders. However, pleadings are against a few of them.
80.The court cannot act on evidence, even where it is established, in the absence of pleadings. In the recent presidential Election Petition, the court of Appeal of Nigeria sitting as the election court, in Peter Gregory Obi & another versus Senator Bola Ahmed Tinubu &INEC & 3 others consolidated with petitions no. 4 and 5 both of 2023, the Election Court stated as doth: -
81.The facts that are conceded and not contentious are: -a.The 2nd ,3rd and 11th respondents are neither residents nor registered voters of Kwale county.b.The 4th Respondent, Augustine Ndegwa is a man though nominated as a woman and listed in the Kenya gazette notice as a man.c.The 5th respondent is a female nominated as female and listed in the Kenya gazette notice as a man.d.There was no person with disability nominated to the County Assembly of Kwale.e.Only the 2nd Respondent was nominated as a youthf.In both 2017 and 2022 election cycles there has been no persons with disability nominated to the county assembly of Kwale.
82.There are constitutional imperatives that govern elections. The elections, whether through proportional representation under Articles 90 and 177 or through universal suffrage must be free, fair and credible. They must reflect the will of the people and not the whims of the ruling elite who decide who gets elected where and in which county. This is in protection of the people’s political rights under Article 38 of the constitution.
83.The composition of the county assembly is a factor of the constitutional structure as set out Article 1 of the constitution under Sovereignty of the people, which provides as hereunder: -
84.Everyone is enjoined by article 3 of the constitution to protect and defend the constitution. The article provides as doth: -
85.Devolution of power is now a reality. It allows people to exercise power at the grass root level. Under article 10 devolution is not just a concept one of the national values and principles of governance. The said article provides as doth: -
86.Under Article 4(2)- Kenya is said to be a free democratic and multiparty state founded on national values of governance referred in article 10. To be able to understand the elections, one must have a wholistic approach to constitutional interpretation. It cannot be mechanistic and textualist.
87.I am grateful for the 2nd Respondent’s succinct submissions. They bring out the problem with people with disability. Only ODM party had the youth and person with disability with a realistic chance of appointment. The rest of the parties picked the amorphous ethnic minorities, minority group over the youth and persons with disability.
88.This is the basis of institutional discrimination on the youth and person with disability. The 2nd Respondents made submissions, without basis that the challenge on person with disability has no legal basis. The question I will address later, is why from 2017 to 2022, the County Assembly has not found itself with people living with disability. The parties conveniently place them in No. 2 or 3, where there is a snow ball chance in hell to be nominated.
89.It is surprising that 60 years from independence, the people of Kwale have had a significant population of its marginalized put in the back banner while able bodied businessmen and women and political willy dealers are said to be marginalized. They are not only not registered in Kwale, but the leaders found it convenient to import non-residents to be nominated.
90.There must be registered voters and residents who are on the qualified lists submitted. The reason the list is long enough is for eventualities like the ones contemplated in this matter.
91.It follows though regional balance as known in the National Assembly and Senate may not be blindly applied, our constitutional architecture provides for balances within the county. There may be counties that are homogenously having one ethnic or religious groups. No-one can begrudge them. However, diversities must be taken care of in line with article 90, 177 and 27(4) of the constitution.
92.In the case of Rose Wairimu Kamau & 3 others versus Independent Electoral & Boundaries Commission Civil Appeal No. 169 of 2013 [2013] eKLR, the Court of Appeal stated that: -
93.The court of appeal was looking at the criteria for nomination and how to balance within communities. These groups can be obtained through intersectionality where, in appointing people with disability, minorities are looked at. The same with the youth and women or gender balance. It never elevated ethnicity to a pedestal for nomination.
94.Under Section 34(6) of the Elections Act the party lists submitted to the Commission under this section shall be in accordance with the Constitution or nomination rules of the political party concerned.
95.I am aware of the position held in the case of Community Advocacy and Awareness Trust & 8 others v Attorney General & 6 others [2012] eKLR, where Majanja J stated that: -
96.That case turned on its own facts. The court was not dealing with a scenario we have in Kwale county assembly where most seats were given to people who have no residence or registration connection to the county. Though nomination may not be an exact science like physics and chemistry, it is equally not magic, mysticism and sorcery. It is a social science where circumstances of the people are taken care of. It is not a ground to raise mysticism and other forms of -isms and obfuscate them through refined, rhetoric, king’s English and sophistry.
97.Consideration of ethnic marginalization is to be considered secondary to the three major established grounds of marginalization. That is gender, youth and people living with disability. For the county assembly, the constitutional imperative of not more than two thirds being of one gender cannot be gainsaid. It is a pure mathematical equation with no magic or mysticism.
98.On people with disability, there is no provision for progressive attainment in the county assembly. The requirement of having people with disability is attainable pronto. The only requirement is that in choosing the 5% people with disability, ethnic diversity and ethnic minorities must be considered.
99.Even within the youth, within the limited space, there should always be a man and woman as they represent different typologies of marginalization. The girl child empowerment and the boychild emancipation should be reflected in the nomination. Otherwise that class of people will remain unrepresented. This should be true youth and not people outside the youth bracket.
100.It is therefore my finding that in designing the marginalized list, ethnicity and youth on one hand and ethnicity and people with disability are to be taken not as separate fields but intersectionality between youth and ethnicity and disability and ethnicity. However, their slots cannot be limited through intersectionality between youth and people living with disability and reduce representation. Though plausible, it should be taken as one or the other.
101.I take judicial notice that the court of Appeal of the republic of Kenya has attained the constitutional imperative regarding the people with disability forming not less than 5% of its members. The county assembly are required to have attained the percentage way back in 2013. We cannot be arguing, 13 year after promulgation of the constitution on the place of the people living with disability in the leadership structure.
102.The argument that IEBC was bound by politicians that design the list is untenable. IEBC has in the past used its constitutional powers to balance regional, ethnic and gender issues in the list. They cannot state that when in the national assembly, they pick a second youth from the second largest party, in lieu of the fist placed youth to balance gender, they have more powers than when they pick a 2nd or 6th placed person living with disability to fulfill a constitutional imperative.
103.In the case of Lydia Mathia v Naisula Lesuuda & another [2013] eKLR, the court of appeal held as follows: -
104.The next question then is this, if we are looking for ethnic minorities and marginalised without portfolio, where are the youths, men and women? Where are people with disability. I agree with the petitioner that the list contained persons whom the elections for special seats were not meant for.
105.How does having three out of 4 marginalised people from outside the county cure marginalisation within the county. Who represents people living with disability?
106.The Elections Act cannot provide for everything. However, when it comes to marginalisation, it must be marginalization within the county. There is already an injunction under article 177 that there is to be national or regional balance within the county. Where then does the power to collect Kenyans from other counties to fill positions in Kwale county come from. A Kenyan has a right to work and live and even own land anywhere in the country. Where he does so is home. Before he exercises that duty, we cannot impose him on the people of a county where they have no connection either by registration or residence.
107.The 1st Respondent was under duty to comply strictly with Article 90 and 177 and ensure that persons with disability were nominated together with the youth. These are youth from the county or registered in the county. Section 13 c of the Elections Act as introduced by Legal Notice No. 73 of 2022, provides that: -
108.What is the rationale of requiring 6 months residence. This is to avoid voter transportation and gerrymandering. If an ordinary voter cannot be transfer his vote, can that same unqualified voter, be made a leader in the same county? I digress.
109.In a scheme of things, the first two categories that have constitutional imperatives are persons living with disability and the youth. In county assembly, there is nothing called progressive realisation. The gender equity, youth empowerment and having a proper representation of people with disability has to be met. The people with disability are not a switch on where the parties place them somewhere down the list and ensure that they are just decorations.
110.It is instructive to note that other than IEBC, none of the other respondents responded to the petition. The factual basis of the petition is unopposed. The legal basis is addressed by IEBC. I do not subscribe to the mantra by IEBC that it must defend even the indefensible.
111.In the case of Lydia Mathia v Naisula Lesuuda & another [supra], the court of Appeal had directed IEBC that it is not doing clerical duties in selecting persons to be nominated but supervising elections. It is on the same light that when selecting a person with disabilities, it does not matter which position they are in the list. The first person with disability has to be prioritised over able bodied persons who may be in higher slots.
112.The same applies to the youth. The other marginalised are taken into consideration after filling the slots for people with disability and the two youth. The nomination is not a chance to fill the county assembly with friends, charlatans, political rejects, cronies, girlfriends, boyfriends and political henchmen at the expense of the youth and persons living with disabilities.
113.The county assembly of Kwale consists of 30 members, 20 of whom are elected on first past the post basis from wards and 4 marginalized who are to be nominated on the basis of the strength of parties. In this 4, there must be effort to ensure that 1.5% of the Assembly are persons living with disability. In the current assembly, the 1st Respondent determined that 6 women will make the county to be complaint with article 27. This makes a total of 30 and out of whom is 1.5 members have to be persons with disability. This can be 1or 2 persons with disabilities are to be nominated in the 4 slots provided. There must also be two youth, a man and woman duly nominated.
114.If there is a slot or so, is then and only the other true minorities are nominated. This is the last slot. The first three are cast in stone. They are for people living with disability and youth.
115.I agree that there is no requirement for the person to be registered in the county to be nominated. However, in practical terms it is not possible to be a minority if you are from outside the county. There must be a connection to the county where the person is marginalised. If the person does not come from or is not a voter in Kwale county and is not a resident in that county, they cannot be a minority in Kwale county.
116.The golden rule is that the nominations are supposed to empower the marginalised in the county. How does nominating someone from Machakos, Kilifi, Wajir, Mombasa or Isiolo counties, who is neither a resident nor a voter in Kwale empower the people and give effect to the sovereignty of the people of Kwale. One cannot miss both residence and registration and claim to represent the people of Kwale County. These are mercenaries who have no loyalty to the People of Kwale.
117.In the circumstances, I hold that the 2nd, 3rd and 11 respondents failed to respond to the facts set out in the petition that that they are neither registered voters in Kwale county nor residents of Kwale county. This is information within their knowledge. The evidence produced and unchallenged was that the 2nd Respondent is a resident of Isiolo county and is a registered voter in that county, where she is registered and votes at Olla Bulle Nursery school, Polling station 1 in Isiolo County.
118.The 3rd Respondent is a resident of Mombasa county, Nyali Constituency, Mkomnani Ward, ASK Ground Gate A Polling Station, Polling Station Number 4. These were conceded facts. The only defence she gave was that there is no requirement for residence.
119.The 11th Respondent is a resident of Machakos County, Mavoko Constituency, Kinanie Ward, Kyumbi Trading Polling Station, Polling Station number 7. These were conceded fact. The only defence was that there is no requirement for residence.
120.The court struck out their responses and they never appealed. The case remained that the averments by the Appellant remained unchallenged. I am aware that the burden of proof is on whoever alleges by dint of section 107 and 108 of the evidence act. These sections provide as follows: -108.Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
121.Section 112 of the Evidence Act places the burden of proving special knowledge on the party with such special knowledge. The registration and residence is within the special knowledge of the Respondent. Under Section 112, the Appellant had the burden of proof in respect to matters within their special knowledge. The said Section provides as doth: -
122.This was buttressed by the Supreme Court in the case of Dickson Mwenda Githinji v Gatirau Peter Munya & 2 Others [2014] eKLR where it stated thus: -
123.The Appellant cannot be expected to documents of residence. She cannot have such documents as they are in the special knowledge of the respondents. She averred that from her personal knowledge she knows the residence of the parties. She annexed documents of registration for the three.
124.They were conceded by the 1st Respondent who argued that residence is not important. Without proof of registration and residence within Kwale, there were no facts upon which to make the court could make a finding that the 2nd 3rd and 11 were properly elected by nomination. In the circumstances the court made a finding without any evidence at all.
125.It must be clear that the court is not setting a new requirement. It is the constitutional imperative. The parties could be registered elsewhere, but must have some connection with Kwale county by way of residence. When both requirements lack, they are ineligible to be marginalized or top up.
126.The Respondents knew where their residence were. The same with registration. The Appellant has no burden of proving a negative. This is made worse by their failure to respond to the petition in time. They also failed to rebut all the evidence tendered. When the court struck out their responses, they did not cross appeal. The failure to rebut by way of responses makes all the subsequent submissions otiose.
127.I agree with nothing useful to add to the postulations by G V Odunga J, as then he was in the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR, when he stated as doth: -
128.I find and hold that the court erred in dismissing the Appellant’s contention that the 2nd, 3rd and 11 respondents are neither registered voters in Kwale nor residents of Kwale county and therefore not legible to have been elected as nominated members for the special seats in the county assembly of Kwale.
129.I find that the appellant petitioner proved that allegation to the standard required in law. I hold and find the nominations of persons from Kilifi, Isiolo, Mombasa, Machakos and Wajir counties does not enhance democracy in Kwale county. It is the source of perpetual marginalisation felt by the people of Kwale.
130.The evidence on the 4th respondent are fairly serious. The requirement is for a zebra list for the nominees. The 4th respondent was nominated as a woman despite being a biological man. In the list he was indicated as a man but finally gazetted as a woman. This means that in the zebra list, a man was inserted as a woman to be able to be in a slot meant for a woman. This evidence was not challenged. This was used to calculate the entitlement under gender top up. Whither did the 1st Respondent get evidence that the 4th Respondent was a man to be so gazetted. Any such difference is meant to rig the zebra list and steal march on the other contestants.
131.The 5th Respondent was is said to be biologically a woman. She was nominated as a woman and gazetted as a man. This means that she took a as a seat woman. The gazettement was incorrect. This was tinkering with the zebra list by assigning incorrect gender. He is also said to be from Wajir county without residence in Kwale county. This is conceded as there is no responses to the Appellant’s positive averments. He did not oppose that particular aspect. There is a duty to traverse every averment that is made.
132.Consequently, I hold and find that the 2nd, 3rd, 4th ,5th and 11th Respondents were invalidly elected by nomination to the county assembly of Kwale. This is in addition to the fact that by failing to nominate a person living with disability and 2 youth, the entire list of the marginalized became poisoned and cannot be salvaged. As regards to the 11th Respondent, her registration is in Machakos county together with her residence. She was not able to prove residence in Kwale within the meaning of section 112 of the evidence Act.
133.Regarding the formula as set out in regulation 56(2), of the Elections (General) Regulations, 2012 I note that the 1st Respondent is required to allocate seats and set a formula. The regulation indicates as doth: -
134.There were 20 elected members on the first past the post elections under Article 177(1) a of the constitution. adding the 4 marginalized this makes a total of 24. The number of women elected, is a paltry 1. If the formula is maintained then only 10 nominees need to be made, with 4 under marginalized category. They were indicated that three of them were women, making a total of 10. 6 had to be added to gender top up. There is no rational formula for reaching 14.
135.I therefore dismiss the allegations that the seats for nomination were to be 14. The 1st Respondent correctly found and allocated 10 seats. It is important also to note that for good governance it is not proper for the county assembly to be dominated by nominated members. In an assembly with only 20 elected members. Having more than 10 nominated members is neither wise nor advisable as they dilute the power of the universal suffrage.
136.The 10 seats allocated are proper in the circumstances. There were no seats to allocate to other parties that did not garner more than 1 seat. The availability of the 10 seats were not to blame for the failure to allocate persons with disability. It was the fettering of discretion by the IEBC, the first Respondent that led to this imbroglio. The 1st Respondent cannot have its hands tied without a basis whatsoever.
137.For example, nominating unqualified persons as marginalised, not only marginalised the county but also wastes the capacity of these people to be nurtured to be leaders in Kwale County. The affirmative Action will not be with us forever. When that happens, the counties need to have nurtured leaders to take over.
138.To then let the party machinery to fill seats with cronies, relatives, political rejects from other counties does not offer purposive interpretation of the constitution. We have for long hidden behind lack of express provisions to marginalise marginalised counties. This is different from nomination of persons seen as settlers at the expense to the locals. The constitution does not differentiate between the two. Even for first past the post, it does not discriminate even for clearance of candidates. If the voters decide to be led by a person who is not a voter in that county it is their business.
139.In this case the nominees were neither residents nor voters in the county. This reminds me when Europeans used to be members of legislative council of Kenya representing Africans. This changed when a first African, Eliud Mathu was nominated in 1944 followed by Benaiah Ohanga who followed in 1946 to represent the majority Africans. That moment for the people of Kwale living with disability is yet to occur.
140.Article 90 of the Constitution provides as doth: -
141.Article 177 of the Constitution provides as follows: -
142.Article 177 2(c) provides the priority in the nominations. It creates seats for the marginalised. However, they prioritize, within the marginalized groups, persons with disabilities and the youth. There is no other category created by the constitution under the said Article.
143.Article 260 defines marginalized group means a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27 (4).
144.The article referred to above, that is, Article 27(4) provides as follows:-
145.In the case of the Commissioner for the Implementation of the Constitution Vs Attorney General & 2 others (2013) eKLR the Court of appeal stated:
146.Further, the case of Millicent Cherotich v Omari Esha Wanjiku & 2 others [2018] eKLR, the High Court stated as follows: -
147.In the case of Communications Commission of Kenya & 5 others vs Royal Media Services Ltd. & 5 others (2014) eKLRIn
148.The court in the above stated the foregoing after Article 90(2) (c) of the Constitution provides: (c) except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.
149.This is to be read holistically. The holistic reading of Article 177 (1) (c) provides for giving an illumination on what needs to be understood in constitution interpretation and application. In the Matter of Kenya National Commission on Human Rights [2014] eKLR, the supreme court stated as doth: -
150.In Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment), the supreme court, stated as doth: -
151.They stated in the said case, Ndii & others v Attorney General & others [supra] as hereunder: -
152.The Constitution of County Assemblies as follows: in article 177 (2) (c) had a number of members of marginalized groups, including persons with disabilities and the youth, prescribed by an Act of Parliament.
153.In this case the Act of Parliament is the County Governments Act no. 17 of 2012, Section 7(2) which provides:
154.Article 197 requires that the County assembly to ensure gender balance and diversity in the following terms:1.Not more than two-thirds of the members of any county assembly or county executive committee shall be of the same gender.2.Parliament shall enact legislation to—(a)ensure that the community and cultural diversity of a county is reflected in its county assembly and county executive committee; and(b)prescribe mechanisms to protect minorities within counties.
155.Reference was made Article 100 which provides for the promotion of representation of marginalized groups. It states: -
156.I note that the common line between the meaning of marginalized groups and minority groups is there fraction of the entire population. The meaning of population per the Black's Law Dictionary is: All of the individuals of, units or samples that make up a constitution.
157.That rule of law and interpretation and application of the Constitution should be in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance.
158.In Institute of Social Accountability & Another v National Assembly & 4 Others High Court, (2015) EKLR the principles in Article 259 were summed as follows: -
159.In order for me to be able to meet the requirements of the constitution, it is not enough to nullify the seats. I must craft an appropriate relief that gives effect to the decision and enhance the rights of the people with disability. In the case of the matter Salaries and Remuneration Commission & another v Parliamentary Service Commission & 15, others; Parliament & 4 others (Interested Parties) [2020] eKLR, the court stated as doth: -
160.It is fallacious to argue that issues that ought herein ought to have been raised after exhausting internal remedies. This is an oft quoted mantra that has no place in the Election Petition matrix. The arena for dispute resolutions moves to courts after elections. This is not a party dispute. The Appellant may have an axe to grind with her party. However, she is not challenging the validity of the nomination list. She is raising a question, that all parties, not just her party submitted qualifying lists.
161.In supervising the elections, the county ended without people living with disability. The list also ended with persons across the parties who are neither residents nor registered voters in the county.
162.She is also raising an issue that they have been allocated 10 seats instead of 14. All these are post-election disputes. If she ends up benefitting at the end, it is a bonus. The case was properly filed. The parties misunderstood the holding in the case of Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others [2019] eKLR, where the supreme court held as doth; -(i)All pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT as the case may be in the first instance.(ii)Where a pre-election dispute has been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution, such dispute shall not be a ground in a petition to the election Court.(iii)Where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution. The High Court shall hear and determine the dispute before the elections and in accordance with the Constitutional timelines.(iv)Where a person knew or ought to have known of the facts forming the basis of a pre-election dispute and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a petition to the election Court.(v)The action or inaction in (4) above shall not prevent a person from presenting the dispute for resolution to the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution, even after the determination of an Election Petition.(vi)In determining the validity of an election under Article 105 of the Constitution or Section 75 (1) of the Elections Act, an election court may look into a pre-election dispute if it determines that such dispute goes to the root of the election and that the petitioner was not aware or could not have been aware of the facts forming the basis of that dispute before the election.
163.There is no mechanism in the constitution for challenging cross-party disputes. Further, the cumulative effective of the parties’ unconstitutionality is seen after IEBC exercises its mandate. There could have been no pre-election dispute on people with disability before the election. No one, in their widest dream could have known that the IEBC will omit youth and persons with disability. The IEBC is expected to check qualifications of the different nominees. It is no practice to do so for thousands of nominees, a few days to the elections.
164.If we continue hiding on legislation or lack thereof, we will end replaying a section of the constitution implicitly.
165.Reading the two holistically, it is not enough to be from an ethnic, cultural sexual language or other groups. The group must be discriminated on the basis of laws, practices or were disadvantaged by discrimination. The women were clearly and historically marginalised despite being a majority.
166.This discrimination was engrained in the formers section 84(4) of the retired constitution. It provided as doth: -(1)Subject to subsections (4), (5) and (8), no law shall make any provision that is discriminatory either of itself or in its effect.(4)Subsection (1) shall not apply to any law so far as that law makes provision -(a)with respect to persons who are not citizens of Kenya;(b)with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal lawc)for the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons; or(d)whereby persons of a description mentioned in subsection(3)may be subjected to a disability or restriction or may be accorded a privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.
167.The youth are universally recognised as a marginalised group. They were even barred from running for presidency before 2010.
168.People with disability were discriminated against till the constitution had to recognise them in article 54 of the constitution as doth. The said Article provides as follows: -
169.It was not till 2003 that the Persons with Disabilities Act, 2003 was enacted in an attempt correct an historical injustice. The Act, in the long title provides that it is: -
170.Parties must therefore realize that the courts will and must not hesitate to act, when the so-called ethnic minorities are not the marginalised communities. However, before other marginalized communities are recognised, there has to be a recognition that the youth form a bedrock of marginalised community.
171.They are not a homogeneous group. This is why in all nomination for the youth, there ought to be a male and female youth nominated before everything else. Secondly there has to be a nomination such that the county assembly shall not have less that 5% of its members as persons with disability.
172.In case of Kwale county, it is either 1 or two since the calculation lead to 1.5 persons which can go either way. This is sacrosanct and cannot be breached. A county assembly without a person or persons with disability consisting 5% of its members is improperly constituted.
173.I find and hold that the court erred in disregarding the question of persons with disability. They were treated so perfunctorily as if they are children of a lesser god. Unless, we learn as a country in particular and the county assembly of Kwale that we must treat people with disabilities not as invited guests who are quietly sent to the catering committee and forgotten, but a full-blooded members towering over the assemblies like the colossus that they are.
174.Consequently, the first Respondent failed to strictly adhere to the tenets of the Kenyan constitution by failing to gazette persons living with disability to the extent of 5% of the county assembly.
175.I declare that part of the Special issue of the Kenya gazette -notice volume CXXIV – NO 186 is null and void to the extent that it failed to nominate persons living with disability.
176.Regarding the 6th, 7th, 8th, 9th and 10 Respondent, I hold the view that there were no allegations against them on the petition. There is no amount of arguments that could find them liable. They ought to have filed responses in time to enable the court adjudicate and give them costs. Without allegations in the plaint, the petition against the five fails.
177.This is because parties are bound by their pleadings. They cannot travel outside the same. The evidence follows pleadings and not vice vice versa.
178.In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth; -
179.In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -
180.On the other hand, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -
181.I therefore find that the case against the 6th, 7th, 8th 9th and 10 Respondents were correctly dismissed with no order as to costs. I have no need to change that order.
182.The List was one undivided list and as such the Appellant did not bring an idle case all together. The 6th, 7th, 8th 9th and 10th Respondents are the sitting leaders of the county who must raise their voice in defence of the marginalized. I dismiss the Appeal against the 6th, 7th, 8th 9th and 10th Respondents with no order as to costs. The appellant has been substantially successful and is not to blame for the imbroglio that she finds herself in.
183.In summary therefore, from the foregoing it is clear by now the direction this appeal takes. I find and hold that the nomination of the 2nd ,3rd and 11 Respondents as members of the county assembly of Kwale is invalid as they are not qualified to be nominated by virtue of not being registered voters and or residents of Kwale county.
184.I hold and find that the court erred in failing to set aside the nomination of the 4th Respondent. I hold and declare that the Nomination of the 4th Respondent as member of the County Assembly of Kwale is invalid as was nominated as a woman while he is biologically male. The 1st respondent erred in substituting his gender in the Kenya gazette separate from the nomination as a man in the pleadings.
185.I had already held that the 5th Respondent was not validly nominated and as such the seat is declared vacant.
186.The orders that recommend themselves are declare to: -a.the positions held by the Appellant did not prove the case against the Khadija Ngala, Meldter I. Nyakiti, Kengo Judy Chizi, Ruwa Elizabeth Mwangola and Teresia B. Muoki and as such declare I declare the 6th, 7, 8th, 9th and 10th Respondents as validly nominated as members of the county assembly of Kwale.b.declare that Fartun Mohamed Musa, Josephine Wairimu Kinyanjui, Augustine Ndegwa, Mulki Abdullahi Adan and Rachael Katumbi Mutisya were not validly elected by nomination to the special seats they were elected to And as such the position they hold are declared as vacant.
187.I direct the first Respondent to choose from the lists provided by the qualifying parties in the proportions of the votes garnered by prioritising under the marginalized: -a.one or two persons living with disability, then,b.two youth, a man and woman resident or voter in the county of Kwale,c.if one slot is available, a person in the list of marginalised qualifying as a foresaid as resident or voter in the county of Kwale county.
188.I direct and order that none of the candidates found to have been invalidly elected are legible for re-election.
189.As per the constitution, the youth and people with disability must have that marginalization till the end of the term.
190.I dismiss the Appeal on the number of seats as 14 instead of 10 and find that as the formula applied by the 1st Respondent was correct.
191.The Appellant shall have costs of 200,000/= in the court below payable by the 1st Respondent and 300,000/= in this court payable by the 1st Respondent.
192.The court is under duty under section 86 of the elections act to issue a certificate on the validity of the elections. The section provides as follows: -
193.A certificate under section 86 of the elections act do issue forthwith.
Determination
194.In the end I allow the appeal partly by making the following orders: -a.The failure to nominate persons with disability is unconstitutional, null and void.b.Nomination of persons who are neither resident nor registered voters of Kwale county is invalid.c.I therefore declare that Fartun Mohamed Musa, Josephine Wairimu Kinyanjui, Augustine Ndegwa, Mulki Abdullahi Adan and Rachael Katumbi Mutisya were not validly elected by nomination to the special seats they were elected to and as such declare that the said seats as vacant.d.I Declare that the 6th, 7th, 8th 9th and 10 respondents, that is, Khadija Ngala, Melder J. Nyakiti, Kengo Judy Chizi, Ruwa Elizabeth Mwangola, Teresia B. Muoki were validly elected as nominated members of the county assembly of Kwale and continue to serve.e.I direct the First Respondent to choose from the qualifying lists provided by the parties in the proportions of the votes garnered by prioritizing under the marginalized as provided in section 36 of the elections act as doth: -i.one or two persons living with disability, then,ii.two youth, a man and woman resident or voter in the county of Kwale,iii.if one slot is available, a person in the list of marginalised qualifying as a foresaid as resident or voter in the county of Kwale county.f.I further direct that in filling the gender top up and in appointing people with disability, and the youth the determination already made as to party entitlements is be maintained, save that shall a party entitled to have a person with disability, does not have in its list a person with disability, then such a party shall forgo that seat and it be given to the next qualifying party with one elected member as per the formula already adopted by IEBC.g.In filling the positions, priorities in the list must be respected safe only where the commission has to comply with the order on residence and registration, and prioritising persons to be nominated, persons lining with disability are deemed to be on top of the lists with the youth as number 2.h.None of the candidates found to have been invalidly elected are legible for re-election.i.As per the constitution, the youth and people with disability must have that marginalization till the end of the term.j.I dismiss the part of the Appeal on the number of seats allocated as 14 instead of 10 and find that as the formula applied by the 1st Respondent was the right one.k.The Appellant shall have costs of 200,000/= in the court below payable and 300,000/= in this court, both payable by the 1st Respondent.l.The other Respondents to bear their own costs.m.The clerk to the county assembly to ensure the newly nominated persons are sworn on the nearest Tuesday within or 7 days of appointmentn.The 1st Respondent to conclude nominations to fill the vacant seats within 14 days.o.Certificates under section 86 of the Elections Act do issue accordingly.
DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF SEPTEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE
