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: -
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  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  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  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  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  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.
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  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  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))  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)  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  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  eKLR, Justice A C Mrima stated as doth; -
179.In the case of Malawi Railways Ltd vs Nyasulu  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  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.