Kujua kama matoleo katika Sehemu ya 43(5) (6) ya Kifungu cha Sheria cha Uchaguzi, 2011 yanayohitaji kujiuzulu kwa ofisa wa Serikali miezi saba (7) kabla ya uchaguzi huku wakati uo huo yakikosa kujumuisha kategoria nyingine za ofisa wa Serikali au wa umma yalikuwa ya ubaguzi na yaliyokiuka katiba. Ofisa wa Umma wanaotafuta vyeo vya kuchaguliwa kujiuzulu Mr Gikera holding brief for Mr Lubullelah for 1st Respondent Mr Ojwang holding brief for Mr Munyi for 2nd Respondentģ. Election Act (Act No 24 of 2011) section 43(5)ġ. State of Kerala & another v N M Thomas & others 1976 AIR 490, 1976 SCR(1) 906 – (Explained)ġ. Hambardda Wakhana v Union of India Air AIR 554 – (Followed)ĥ. NTN Pty Ltd and NBN Ltd v State LRC (Constitution) 333 – (Explained)Ĥ.
S v Makwangane & others 1995 (3) SA 391- (Followed)ģ. The law was designed to aid them make up their minds on where they want to maximize their energies, Seven months before the election date is sufficient time for them to prepare themselves to meet their fate at the election box, a longer period would be more unreasonable.ġ. Public officers who may wish to run for elective positions cannot have one leg in public service and another at their elective area. It is upon the state or a person seeking to justify the limitation of a right or fundamental freedom to show that such a limitation is reasonable and justifiable.
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The test is whether it has a reasonable basis free from artificiality and arbitrariness, embracing alland omitting none naturally falling into that category.ģ. A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. Equality does not connote absolute equality. Equality means parity of treatment under parity of conditions. The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. The Legislature understands and appreciates the need of its own people, and the law that it enacts are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.Ģ. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment.
section 43(6) this section shall not apply to the President, the Prime Minister, Deputy President, Member of Parliament, a County Governor, a Deputy County Governor and a Member of CountyĪrticle 27 equality and freedom from discrimination.ġ. Section 43(5) a public officer who intends to contest an election under the Act shall resign from public office at least seven months before the date of election. – whether the petition had merit – Constitution article 24(3) 27 232 – Election Act (No 24 of 2011) sections 43(5)(6) Whether the apparent limitation of the right to equal treatment as set out in section 43(5) and (6) is reasonable and justifiable.Ĭonstitutional Law – fundamental rights and freedoms – equality and freedom from discrimination – claim that provisions of the Election Act requiring the resignation of State officers seven (7) months prior to the elections, while at the same time excluding other categories of public officers was discriminatory and unconstitutional – duty of he who asserts that fundamental rights and freedoms is limited to prove – whether equality connotes absolute equality – test to be applied Whether the provisions of section 43(5)(6) of the Election Act, 2011 requiring the resignation of State officers seven (7) months prior to the elections while at the same time excluding other categories of State or public officers was discriminatory and unconstitutional. Mr Gikera h/b for Mr Lubullelah for the 1st Respondent Mr Ojwang h/b for Mr Munyi for the 2nd Respondent High Court at Nairobi (Milimani Law Courts)Ĭharles Omanga & another v Independent Electoral & Boundaries Commission & another & another eKLR Charles Omanga & Patrick Njuguna v Independent Electoral & Boundaries Commission & Attorney General & Union of Kenya Civil Servants
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