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Court of AppealPartially AllowedCivil Appeal 94 of 2005· [2006] KECA 364 (KLR)

Kipkalya Kiprono Kones v Republic & Others (Ex-parte Kimani Wa Nyoike & Others)

Court of Appeal of Kenya
10 November 2006
ROR.S.C. OmoloEOE.O. O'KubasuEGE.M. Githinji
8,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that disputes over parliamentary nominations must be challenged through an election petition, not judicial review.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal by Kipkalya Kiprono Kones against orders of Ojwang', J which had quashed the Electoral Commission's proceedings of 14th and 17th January 2003 and directed the Commission to comply with section 33 of the Constitution regarding Ford People's single nominated seat in the National Assembly. The dispute arose from rival camps within Ford People, each forwarding a nominee (the appellant and Kimani Wa Nyoike) to the Commission, which forwarded the appellant's name; the President appointed him and he was gazetted and sworn in. The central question was whether judicial review was available to the aggrieved parties. The Court held that the Constitution and the National Assembly and Presidential Elections Act (Cap 7) prescribe the exclusive procedure for challenging elections and nominations - an election petition - and that judicial review, a creature of the Law Reform Act and Order 53, cannot oust those provisions. It further held that once appointed and sworn in, a nominated member can only lose his seat through the constitutional process for declaring a seat vacant, with no distinction between elected and nominated members for removal purposes; the High Court's quashing orders were therefore issued in vain. The Court affirmed that the Electoral Commission, though constitutionally independent, remains amenable to the High Court's supervisory jurisdiction, but left open whether its nomination-handling is judicial or quasi-judicial. The appeal was allowed, all Ojwang', J's orders set aside, the notice of motion dismissed, the cross-appeal dismissed, and each party ordered to bear its own costs in both courts.

Key legal issues

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01

Availability of judicial review against the Electoral Commission's nomination decision

Holding

Judicial review was not available; the proper remedy for challenging nomination to the National Assembly is an election petition under the Constitution and the National Assembly and Presidential Elections Act.

Reasoning

The Constitution and Cap 7 set out in detail the procedure for challenging elections and nominations. The Law Reform Act and Order 53 are inferior to the Constitution and cannot oust those provisions. Allowing courts to halt nomination or election processes by ordinary suits would risk leaving the National Assembly unpopulated and disenfranchise voters pending hearings.

p. 12
02

Removal of nominated members of the National Assembly

Holding

Nominated members, once appointed and sworn in, can only lose membership through the constitutional process for declaring a seat vacant; no distinction exists between elected and nominated members for removal purposes.

Reasoning

There are two routes of entry into the Assembly but only one removal process. The Speaker may declare a seat vacant under section 18 of Cap 7 on admissible evidence, and the member's only remedy is a petition under section 44 of the Constitution. Judicial review cannot be used to unseat a member.

p. 10
03

Effect of completed appointment on quashing orders

Holding

Once the President had appointed the appellant and he had been sworn in, quashing the Commission's proceedings could not remove him from the Assembly; the High Court orders were issued in vain.

Reasoning

The basic fallacy in the judgment below was treating the orders as merely stopping the Commission's nomination process, when the process had been completed by presidential appointment. The Speaker could not declare the seat vacant outside the confines of the Constitution, and the Judge had no jurisdiction to issue a certificate of determination absent an election petition.

p. 10
04

Supervisory jurisdiction over the Electoral Commission

Holding

The Commission's independence under section 41(9) does not preclude High Court judicial review of its decisions, by virtue of section 123(8) of the Constitution.

Reasoning

Section 123(8) ensures the rule of law is enforced against all state organs; no organ may claim its powers cannot be questioned by courts. The same applies to the Public Service Commission. However, whether the Commission's receipt and forwarding of names was judicial or quasi-judicial was left unresolved.

p. 9

Legal principles established

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  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed; judicial review cannot oust clear constitutional and statutory provisions.
  • The only valid way of challenging the outcome of the electoral process, including nomination of members to the National Assembly, is by election petition.
  • The Constitution provides only one process for removal of members of the National Assembly, applicable equally to elected and nominated members.
  • The Electoral Commission, though independent, remains amenable to the supervisory jurisdiction of the High Court.

Court orders

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  1. 1.Appeal allowed
  2. 2.Each and every order made by Ojwang', J set aside
  3. 3.Notice of motion dated 28th February 2003 dismissed
  4. 4.Notice of Cross-Appeal by the 3rd, 4th, 5th, 6th and 7th Respondents dismissed
  5. 5.Each and every party to bear their own costs in the High Court and in this Court

Authorities

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Legislation

  • Constitution of Kenyasection 33
  • Constitution of Kenyasection 41
  • Constitution of Kenyasection 49(1)
  • Constitution of Kenyasection 44
  • Constitution of Kenyasection 39
  • Constitution of Kenyasection 40
  • Constitution of Kenyasection 41(9)
  • Constitution of Kenyasection 123(8)
  • Constitution of Kenyasection 106(12)
  • Constitution of Kenyasection 35
  • National Assembly and Presidential Elections Act (Cap 7)section 18
  • National Assembly and Presidential Elections Act (Cap 7)section 19(1)
  • National Assembly and Presidential Elections Act (Cap 7)section 30
  • National Assembly and Presidential Elections Act (Cap 7)section 29
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 53 rules 1 and 2
  • Law Reform Act (Cap 26)judicial review provisions

Cases cited (5)

  • THE SPEAKER OF THE NATIONAL ASSEMBLY VS. THE HON. JAMES NJENGA KARUME
    Civil Application No. NAI 92 of 1992 [NAI 40/92 UR] (unreported)

    Clear constitutional/statutory procedures must be strictly followed; Order 53 cannot oust them.

  • RICHARD CHIRCHIR & ANOTHER VS. HENRY CHEBOIWO & ANOTHER
    decided 24th December 2002

    Injunction granted in election matter by plaint; contrasted with the petition procedure.

  • KIMANI WA NYOIKE VS. THE ELECTORAL COMMISSION OF KENYA & ANOTHER
    Civil Application No. NAI 213 of 1995 [96/95 UR] (unreported)

    Election grievances must be addressed by election petition; Karume preferred over Chirchir.

  • RAPHAEL SAMSON KITHIKA MBONDO VS. LUKA DAUDI GALGALO AND PAUL JOSEPH NGEI
    Election Petition No. 16 of 1974 (unreported)

    Example of awaiting results and filing an election petition rather than ordinary suit.

  • THE QUEEN VS. THE COUNTY JUDGE OF ESSEX AND CLARK
    [1887] 18 QB 704

    Similar effect on special procedures being strictly followed.

On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Appl. No. 129 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal against High Court judicial review orders (Constitution section 44 read with appellate jurisdiction over the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kipkalya Kiprono Kones v Republic & Others (Ex-parte Kimani Wa Nyoike & Others)", Case Analysis (2006). Civil Appeal 94 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/364/eng@2006-11-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.