THIS MATTER coming up on 14/9/2023 for judgment in the election Appeal before Honourable Justice Kizito Magare Upon perusing the record of Appeal, hearing parties, perusing submissions and evidence, in the presence of advocates for the parties virtually , IT IS HEREBY DECREED THAT: -
1. 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 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 prioritizing 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 Appeal on the number of seats as 14 instead of 10 and find that as the formula applied by the 1st Respondent was correct.
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 appointment
n. 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 Virtually on this 14th day of September, 2023. Judgment delivered through Microsoft Teams Online Platform.
In the presence of:-
Miss Kagori for the Appellant
Mr Ian Amino for the 1st Respondent
Willis Oluga for the 2nd Respondent
Mr Oduor for the 3rd Respondent
Rashid Mbwiza for the 4th , 8th and 9th Respondent
Mola Ahenda for the 5th Respondent
MR Oduor/ Mr. Michael Gitonga for the 6th and 7th Respondent
Mr. Gakaria for the 10th Respondent
Samuel Mbatai for Mr. Issa for the 11th Respondent
1. 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 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 prioritizing 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 Appeal on the number of seats as 14 instead of 10 and find that as the formula applied by the 1st Respondent was correct.
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 appointment
n. 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 Virtually on this 14th day of September, 2023. Judgment delivered through Microsoft Teams Online Platform.
In the presence of:-
Miss Kagori for the Appellant
Mr Ian Amino for the 1st Respondent
Willis Oluga for the 2nd Respondent
Mr Oduor for the 3rd Respondent
Rashid Mbwiza for the 4th , 8th and 9th Respondent
Mola Ahenda for the 5th Respondent
MR Oduor/ Mr. Michael Gitonga for the 6th and 7th Respondent
Mr. Gakaria for the 10th Respondent
Samuel Mbatai for Mr. Issa for the 11th Respondent