Zaynab Allyow Issack v Jubilee Party [2017] KEHC 3440 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION NOMINATION APPEAL NO. 36 OF 2017

ZAYNAB ALLYOW ISSACK……………………...…………………...APPELLANT

VERSUS

JUBILEE PARTY…………………………………..………………..RESPONDENT

RULING

This appeal was filed on 24th August 2017 together with Notice of Motion of the same date. This court directed that the Appellant/Applicant proceeds to serve the Respondent for hearing of the Appeal on 5th September 2017. This morning this court was informed that it was not possible to serve the Appeal on the Respondent because their offices remain closed and their advocates refuse to accept service for lack of instructions. This court was further informed that gazettement of the Party List for members of the County Assembly for Marsabit was done on 28th August 2017 being Gazette Notice No. 8380 and therefore the prayers sought have been overtaken by events.

Mr. Dome for the Appellant made an oral application to have this court grant the Appellant an order stopping the swearing in of the nominated members of the Marsabit County Assembly. Mr. Dome however did not apply to withdraw the Appeal.

I have considered the oral application. The election of the Members of Assembly in respect of Special Seats by way of nominations is completed once IEBC gazettes the names of the nominees. This position was made clear by various decisions with the Supreme Court authority of Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others reported in [2016] eKLR being one of the leading decisions on that issue. As held by the Supreme Court in that case gazettement of the nominated members included in the Party Lists signifies the completion of “election by nomination” and also notifies the public of the people elected by nomination to serve in the County Assembly.  It is obvious to me that any dispute arising from such election by nomination can only be determined in the same manner an election dispute for persons elected by registered voters is determined. The aggrieved party must file an election petition to be determined by an Election Court.

In view of the above reasoning, this court cannot grant the prayer sought because by so doing, this court, which is not an Election Court, would be determining an election dispute. I decline to grant an order sought. I also order this Appeal, being Election Nomination Appeal No. 36 of 2017 dismissed with no order to costs. Orders shall issue accordingly.

Delivered, dated and signed this 5th day of September 2017.

S. N. Mutuku

Judge