85 3.6.1.2.6While acknowledging that the term ‘special interests’ is not defined by the Constitution, the Court of Appeal in Commission on the Implementation of the Constitution v Attorney General & 2 Others, Civil Appeal 351 of 2012, ruled that whatever interpretation is given to the term, it must bear the same meaning as marginalised groups. 3.6.1.2.7 A party list should only include persons who meet the suitability and eligibility requirements for election to the relevant office, including the requirement for public officers to resign as a precondition for participating in politics. A person who is unsuitable or ineligible to be elected to an office cannot be nominated to the same office by way of a party list. In NARC Kenya & Another v IEBC & Another, Nairobi High Court Civil Appeal Election Petition No. 2 of 2014, the Court held as follows: Section 43(5) of the Elections Act requires resignation by public officers who seek elective posts. As regards nomination of members to special seats, it is my considered opinion that Article 90 (2) of the Constitution places a threshold, that is, persons nominated and forming part of the party list should ordinarily qualify to be elected had there been availability of seats in the National Assembly, Senate or the County Assembly. The threshold thus takes us back to section 25 of the Elections Act wherein sub-section (2) (a) disqualifies a state officer or other public officer from being elected a member of a county assembly, unless such officer has resigned from office at least 7 months to the date of elections, as per section 43 (5) of the Elections Act…the impartiality of public servants is a cardinal value enshrined in Article 232 (1) (a) of the Constitution…It is my view that nominated members of a political party irrespective of whether the position is elective or nominative are active members of the said party who engages actively in party politics. A state or public officer, may not promote the principles outlined in Article 232 (1) (a) of the Constitution, if they have, in the words of Lenaola J., one leg in public service and another at the political arena. It is my considered opinion that the 2nd Respondent ought to have resigned from public service per section 43 (5) of the Elections Act. I therefore find and do hold that the 2nd Respondent was not eligible for nomination for membership of the County Assembly of Garissa under the Gender TopUp Category. 3.6.1.2.8A party can also only nominate persons who are registered as voters (Amani National Congress Party & Another v Hamida Yaroi Shek Nuri & Another, Nairobi Election Petition Appeal No 5 of 2018 & 1 of 2017 (consolidated)). 3.6.1.2.9A political party must comply with its nomination rules in making the party list (S 34(6), Elections Act; Regulation 55, Elections (General) Regulations 2012; Regulation 6, Elections (Party Primaries and Party Lists) Regulations, 2017) and take steps to ensure that the nomination process is not open to abuse (NARC Kenya & Another v IEBC & Another, Chief Nairobi Magistrate’s Court Election Petition No. 12 of 2013). Parties are, therefore, required to submit a declaration of compliance with their nomination rules alongside the party list to the IEBC (Regulation 55(4) Elections (General) Regulations 2012. 3.6.1.2.10 Moreover, persons nominated by a political party must be members of the political party as at the date of the submission of the party list (s 34(8) of the Elections Act, 2011; and Peninah Nandako Kiliswa v IEBC & 2 Others, Nairobi Civil Appeal No. 201 of 2013). It is the role of the Registrar of Political Parties to verify party membership of those on the party list (s 34(fc), Political Parties Act No 11 of 2011). 3.6.1.2.11 Further, where there is a conflict between a political party’s constitution or nomination rules and a decision of a court on the compilation of a party list, the court decision prevails (Mary Wairimu Muraguri & 12 Others v IEBC & 5 Others, Nyeri High Court Election Appeal No. 30 of 2014). BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION