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Case Brief1
Facts
- The facts of the case are rather straight-forward. The Appellant was elected
governor of Wajir County while the 1st and 2nd Respondent also contested the
elections and lost. They challenged the election at the High Court (Mabeya J)
where the issues of irregularities and illegalities of the elections were analyzed.
Further, the issue of the academic credentials of the governor-elect were
considered. - It was held that the appellant did not have the requisite qualifications to run for
governor and that there were grave irregularities that affected the integrity of the
elections results in Wajir. - The Court of Appeal (Waki, Makhandia & Kiage, JJ.A) upheld the judgment of
the High Court solely on the ground of academic qualifications and declined to
address the issues of irregularities because of the mootness doctrine. - As such, the issue at the Supreme Court was mainly on the academic qualifications
and the jurisdiction of the Supreme Court to deal with an issue on appeal that was
not considered in the Court of Appeal. - The Supreme Court was also invited to address the issue on whether an election
court has jurisdiction to determine pre-nomination disputes.
Holding - The Supreme Court sought to address the issue of whether election courts have
jurisdiction to determine pre-nomination disputes. In its analysis, the Supreme
Court heralded 6 guiding principles guiding the jurisdiction of elections courts in
determining pre-nomination disputes with Maraga CJ and Lenaola SJ dissenting:
a. All pre-election disputes including those of nominations should be brought to the
IEBC tribunal or the PPDT in the first instance;
1 Prepared by Mokua Manyara, Advocate; mokua@mnwlaw.co.ke +254707160191
b. Where pre-election disputes have been conclusively resolved by IEBC/PPDT or the
High Court sitting as JR or article 163 (3) and (6), such disputes shall not form
part of grounds for election petitions;
c. 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;
d. where a person knew or ought to have known of the facts forming the basis of a preelection 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;
e. the action or inaction in (iv) 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;
f. 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 - Ultimately, the Supreme Court, based on the grounds above, allowed the Petition
and thus upheld the election of the Appellant as Wajir Governor. - The Supreme Court further declined to address the questions on the irregularity
of the elections as the same were not addressed by the Court of Appeal with
Lenaola J concurring on the issue and Maraga CJ dissenting.
CONCLUSION - The decision of the Court of Appeal was set aside and the election of the
Appellant (governor of Wajir) was upheld. - For the avoidance of doubt, the court held that in case the elections were to be
nullified, the Deputy Governor would not assume office as governor as his election
also stood nullified.