67
High Court Constitutional Petition No. 552 of 2012).
3.5.1.10 Political parties are required, during party nominations, to ensure that candidates who are
nominated make a self-declaration in the manner provided by the Leadership and Integrity Act,
possess qualifications to hold elective office in the Constitution and other written law, and
meets any requirements that may be prescribed by the Constitution and nomination rules of
the political party (Regulation 13(1), Elections (General) Regulations; and s 38H Political Parties
Act 2011).
3.5.1.11 However, the ultimate responsibility for inquiring into and determining the suitability and
eligibility of candidates for elective office lies with the IEBC (Michael Wachira Nderitu & 3 Others
v Mary Wambui Munene Aka Mary Wambui & 4 Others, Nairobi High Court Constitutional Petition
No. 549 of 2012; International Centre for Policy and Conflict & 5 Others v Attorney General & 5
Others, Nairobi High Court Constitutional Petition No. 552 of 2012; Mohamed Abdi Mahamud v
Ahmed Abdullahi Mohamad & 3 Others, Supreme Court Petition 7 & 9 of 2018 (consolidated); and
Okiya Omtatah Okoiti & 15 Others v The Hon. Attorney General & 7 Others, Nairobi Petition E090 of
2022 (consolidated)). In the case of Dennis Gakuu Wahome v IEBC & Others, Nairobi High Court
Petition No. E321 of 2022 (Johnson Sakaja Koskei), the Court held as follows:
[218] Deriving from the foregoing, the DRC, therefore, exercises jurisdiction over
election disputes except those which arise upon the declaration of election results and
the disputes which fall within the purview of the Political Parties Disputes Tribunal.
[221] This Court, on the basis of the Constitution, the law and the binding decisions of
the Supreme Court, is clear in its mind that the DRC has the jurisdiction to deal with
disputes on the academic qualifications of a candidate.
[222] The DRC must, however, ensure that the requisite standard of proof is attained
depending on the nature of and the manner in which the complaint is laid before it.
3.5.1.12 The IEBC cannot evade accountability for this responsibility by simply saying that the voters
have a chance to re-vet the nominees during the election (Godfrey Mwaki Kimathi & 2 Others v
Jubilee Alliance Party & 3 Others, Nairobi High Court Petitions No. 102 and 145 of 2015).
3.5.1.13 The IEBC also cannot cite its own capacity constraints, or the existence of other constitutional
or statutory bodies, as a justification for failing to determine or make inquiries as to the
suitability and eligibility of candidates for elective offices. In Godfrey Mwaki Kimathi & 2 Others
v Jubilee Alliance Party & 3 Others, Nairobi High Court Petitions No. 102 and 145 of 2015, the
Court held as follows:
…the duty of determining the integrity of candidates falls squarely on the shoulders of
the Commission [i.e. the IEBC]. It cannot run away from this obligation by simply saying
that it has no machinery to determine the integrity of the candidates. In my view, the
integrity of the electoral process encompasses the integrity of the players thereat and
it is the duty of the Commission to ensure that the electoral process it presides over
is free, fair and transparent. Therefore, integrity of the candidates is part and parcel
of the integrity of the electoral process. The Commission cannot conduct sham or
mock elections simply because it does not have the machinery to undertake its legal
and constitutional obligations…where an issue of integrity is properly raised before
the Commission, the Commission must make a determination thereon one way or the
other. It cannot shirk its responsibility by shifting the onus to other bodies.
3.5.1.14 Nevertheless, it is not the role of the IEBC to ensure the authenticity of degree certificates,
BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION