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Court of AppealPartially AllowedCivil Appeal No. 194 of 2013· [2013] KECA 56 (KLR)

Alice Wahito Mwangi Ndegwa & 3 others v Independent Electoral Boundaries Commission & another [2013] KECA 56 (KLR)

Court of Appeal
20 December 2013
3,906 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that no one can be dropped from a party nomination list without first being given a fair hearing.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal (Karanja, Kiage and Gatembu Kairu JJ.A) in an appeal by four aspiring nominees to various County Assembly special seats following the 4th March 2013 general elections. Each appellant had failed before IEBC's Dispute Resolution Committee and before the High Court (Ngugi, Korir and Majanja JJ), which dismissed their petition on 12th July 2013. The appeal partially succeeds. The 1st appellant, Alice Wahito Mwangi Ndegwa, established on affidavit material that she was a TNA member duly nominated to the Laikipia County Assembly gender top up list; the court held that her removal and replacement by IEBC's Dispute Resolution Committee was done without according her a hearing, and that the High Court erred in dismissing her claim on the basis of a complaint process to which she was not privy. Her appeal was allowed with costs against IEBC, and IEBC was directed to gazette her as the duly elected special member for Laikipia County Assembly. The appeals of the 2nd, 3rd and 4th appellants were dismissed: the identity dispute over the Busia nominee was a factual matter satisfactorily dealt with; the 3rd appellant adduced no evidence that the Kisii nominee was not disabled; and the court could not interfere in the Uasin Gishu matter because the nominee, Cheruiyot Maritim, had not been heard on the age question. The Court also held, following Rose Wairimu Kamau, that Article 90(2)(c) excludes regional and ethnic diversity as a county-level nomination criterion but does not license unfairness. Costs of the dismissed appeals were borne by each party.

Key legal issues

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01

Whether the 1st appellant's removal from the party list without a hearing was lawful

Holding

The appeal succeeds; the 1st appellant demonstrated she was condemned unheard and the High Court erred in dismissing her case.

Reasoning

The appellant's affidavit, annexing TNA's party lists and other material, prima facie established that she was a member of TNA and duly nominated; those facts were not challenged by the respondents. IEBC's Dispute Resolution Committee removed her from the list and replaced her without according her a hearing, and the High Court's judgment rested on a complaint process to which she was not privy. The High Court therefore failed to have regard to these matters and erred in dismissing the petition.

p. 6
02

Whether the 2nd appellant's complaint of a typographical error in publication of names was established

Holding

Dismissed; the identity of the nominee was a factual issue satisfactorily and procedurally dealt with by the Committee and the High Court.

Reasoning

After hearing both women, the Dispute Resolution Committee was satisfied that no changes to the gender top up list should be effected; evidence showed two different parties and not a mere typographical error. The High Court rightly held the identity issue factual. The Court could find no respect in which the Constitution or the law was violated.

p. 6
03

Whether the 3rd and 4th appellants proved their allegations of invalid nominations

Holding

Both appeals dismissed; allegations unsupported by evidence fail, and adverse orders cannot be made against a non-party without a hearing.

Reasoning

The 3rd appellant was accorded a hearing both before the Committee and the High Court, but there was no material supporting the allegation that the nominee was not disabled. As to the 4th appellant, the High Court correctly held that Cheruiyot Maritim, who would be removed if the complaint succeeded, had to be heard; and its reading of Article 90(2)(c) aligned with Rose Wairimu Kamau. Neither appellant proved breach of constitutional safeguards on a balance of probabilities.

p. 7

Legal principles established

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  • A person cannot be removed from a party list and replaced without being accorded a hearing; decisions made without a hearing offend the right to fair administrative action.
  • It is not enough to invoke constitutional provisions; a party must offer adequate evidence of the manner of the breach on a balance of probabilities.
  • Article 90(2)(c) excludes regional and ethnic diversity as a nomination criterion at county level, but this does not excuse unfair, inequitable nomination exercises.
  • A person who would be adversely affected by an order removing them from a nomination must be made a party and heard before such an order is made.

Court orders

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  1. 1.Allow the 1st appellant's appeal and set aside the High Court's dismissal of her case
  2. 2.IEBC to proceed to gazette the 1st appellant as the duly elected special member under the general category for Laikipia County Assembly
  3. 3.Dismiss the appeals of the 2nd, 3rd and 4th appellants
  4. 4.Costs of the appeal against the 1st respondent in respect of the 1st appellant
  5. 5.Each party to bear their own costs in relation to the appeal by the 2nd, 3rd and 4th appellants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 90 (incl. 90(2)(c))
  • Constitution of Kenya, 2010Article 176
  • Constitution of Kenya, 2010Article 177 (incl. 177(1)(b), 177(1)(c), 177(2))
  • Constitution of Kenya, 2010Article 82
  • Constitution of Kenya, 2010Article 87
  • County Governments Act (No. 17 of 2012)Section 97
  • Elections ActSection 75

Cases cited (3)

  • Commissioner for Implementation of the Constitution v The Attorney General and two others
    Civil Appeal No. 351 of 2012
  • Rose Wairimu Kamau and three others vs. IEBC
    Civil Appeal No. 169 of 2013
  • San Antonio School District v. Rodrigues (1973) 411 US 29
    (1973) 411 US 29
On appeal from
High Court of Kenya at Nairobi
High Court Petition No. 305 of 2013
Jurisdiction invoked
First appeal from the High Court exercising constitutional jurisdiction (petition under Articles 47, 25, 50 of the Constitution); appellate jurisdiction over the High Court petition.

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, "Alice Wahito Mwangi Ndegwa & 3 others v Independent Electoral Boundaries Commission & another [2013] KECA 56 (KLR)", Case Analysis (2013). Civil Appeal No. 194 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/56/eng@2013-12-20

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