87
(i) Dies;
(ii) withdraws from the party list;
(iii) Changes parties;
(iv) Resigns; or
(v) Is expelled from his/her party during the term of the representative.
3.6.1.2.21 Where re-allocation is to be done, the next candidate of the same gender in the respective
party list is selected (Lydia Mathia v Naisula Lesuuda & Another, Civil Appeal (Application) No.
287 of 2013; and Lydia Nyaguthii Githendu v IEBC & 17 Others, Civil Appeal 224 of 2013). Where
there are no more candidates on the same party’s list, IEBC shall require the party to nominate
one within 21 days (s 37(2), Elections Act, 2011).Where vacancy occurs within 3 months of a
general election, it shall not be filled (s 37(3), Elections Act, 2011). Moreover, where the party
fails to nominate within twenty-one days of the vacancy, the slot shall not be allocated for the
remainder of the term (s 37(4) Elections Act, 2011).
3.6.1.2.22
However, where the re-allocation is necessitated by expulsion, it must be demonstrated
that the party representative who is expelled was afforded fair hearing before the expulsion
(Hon Isaac Mwaura Maiga v Jubilee Party & 3 Others Nairobi High Court Civil Appeal No. E248 of
2021).
3.6.2 The Independent Electoral and Boundaries Commission
3.6.2.1 The IEBC also has a role to play in the nomination of candidates. First, once political parties
have completed party nominations, they should submit a list of all their selected candidates to
the IEBC at least 60 days to the date of the elections (s 31, Elections Act, 2011).
3.6.2.2 On receipt of the list of political parties’ candidates, the IEBC will verify the certification of the
political parties’ candidates, by counter checking the details of the persons in whose name the
certificates of nomination were issued (s 31(3) and (4), Elections Act).
3.6.2.3 The IEBC is also duty-bound to ascertain the qualifications of the candidates nominated to
vie in the elections. However, this duty does not extend to verifying the authenticity of degree
certificates presented by candidates. In Gideon Keya & Another v Wavinya Ndeti, IEBC Dispute
Resolution Committee (DRC) Complaint No. 56 of 2022, the NDRC asserted:
[73] We note that the main bone of contention in this dispute is the authenticity of the
Respondent’s degree.
[74] Therefore, the big question would be, “does this Committee have the jurisdiction to
determine the question of the authenticity of academic documents?”
[82] During registration of candidates and insofar as verification of documents is
concerned, it would be prudent to appreciate the roles of the Returning Officer.
[83] Pursuant to Regulation 47 (1) of the Elections (General) Regulations, 2012 as
amended by Legal Notice No. 72 of 2017 the role of the Returning Officer includes
ascertaining the educational qualification of a candidate by receiving the pertinent
academic documents during registration of candidates.
[84] Further to the foregoing, where the body that issued the certificate is not based in
Kenya, a candidate shall be required to seek authentication of the body with the Kenya
BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION