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Court of AppealDismissedCivil Appeal No. 138 of 2010· [2011] KECA 399 (KLR)

Paul Kibugi Muite & 2 others v Electoral Commission of Kenya & another [2011] KECA 399 (KLR)

Court of Appeal
1 July 2011
EOE.O. O'KubasuEGE.M. GithinjiJOJ.W. Onyango Otieno
2,754 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 dismissed Safina Party's bid for a nominated MP slot, ruling the Electoral Commission's 2007 allocation was fair and constitutional complaints were misplaced.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment and decree of the High Court (Wendoh & Khamoni, JJ.) of 7 May 2010 in H.C. Petition No. 60 of 2008, dismissing a petition by officials of Safina Political Party. The petitioners complained that after the 2007 General Elections the Electoral Commission of Kenya unlawfully and discriminatorily denied Safina one of the twelve nominated Members of Parliament slots under section 33 of the repealed Constitution, allegedly breaching sections 33, 70, 80 and 82 and the Inter Party Parliamentary Group Agreement, 1997, and allocating Safina's claimed slot to ODM-K. The High Court had held there were no constitutional rights or freedoms to enforce, that any challenge to the ECK's exercise of power should have been by judicial review, and that certiorari would not issue in vain since the nominations had already been made. The Court of Appeal, in a single judgment of the court delivered by O'Kubasu, Githinji and Onyango Otieno, JJ.A., discharged its first-appeal duty to re-evaluate the matter and reached the same conclusion as the High Court: the nomination process was essentially arithmetical, the allegations of discrimination and breach of fundamental rights were not proved, and the ECK could not be faulted in allocating the twelve seats. The court further observed that the first interested party was not before it and that the completed allocation could not be rectified without negative consequences. It agreed that the complaint about the ECK's process should have been brought by judicial review and dismissed the appeal with costs.

Key legal issues

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Whether the ECK breached section 33 of the repealed Constitution and fundamental rights in allocating nominated MP slots

Holding

The court affirmed the High Court's dismissal, finding the allocation process was essentially arithmetical and that the appellants had not proved discrimination or breaches of fundamental rights.

Reasoning

The court re-evaluated the record, including the replying affidavit of Mr. Kivuitu, Chairman of the ECK, who explained the allocation of the twelve nominated seats in proportion to each party's representation. The High Court was satisfied with that explanation, and the appellate court reached the same conclusion. Allegations of discrimination and breaches of fundamental rights were found to have no place in a matter whose main complaint was fairness of an arithmetic allocation, and they were not proved.

p. 5
02

Whether the constitutional petition was the proper procedural vehicle

Holding

A complaint about the ECK's nomination process ought to have been brought by way of judicial review; on this point the court agreed with the superior court.

Reasoning

The High Court judges had held that the appellants were in effect challenging the exercise of power by the ECK under section 33 of the Constitution, which should have been done through judicial review. The Court of Appeal endorsed this view, adding that the nomination had already been completed with no way to rectify it without negative consequences, and that the interested party was not before it.

p. 6

Legal principles established

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  • On a first appeal, the appellate court has a duty to re-evaluate and assess the evidence and submissions before the superior court and make its own findings
  • A complaint about the process of nomination of nominated Members of Parliament by the Electoral Commission should be brought to the High Court by way of judicial review rather than a fundamental-rights petition

Court orders

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  1. 1.The appeal be and is hereby dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya (repealed)Sections 33, 70, 80, 82, 84
  • National Assembly & Presidential Elections Act, Chapter 7Section 17
  • Judicature Act, Chapter 8Section 3
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • SELLE V. ASSOCIATE MOTOR BOAT COMPANY LTD
    [1968] E.A. 123
  • WILLIAMSON DIAMONDS LTD. V. BROWN
    [1970] E.A. 1
  • KIPKALYA KIPRONO KONES V. REPUBLIC & ANOTHER EX-PARTE KIMANI WA NYOIKE & 4 OTHERS
    Civil Appeal No. 94 of 2005
On appeal from
High Court of Kenya at Nairobi
H.C. Petition No. 60 of 2008
Jurisdiction invoked
First appeal under sections 70, 82 and 84 of the (repealed) Constitution; the judgment does not invoke Article 163(4)(a)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Kibugi Muite & 2 others v Electoral Commission of Kenya & another [2011] KECA 399 (KLR)", Case Analysis (2011). Civil Appeal No. 138 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/399/eng@2011-07-01

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