Alice Wahito Mwangi Ndegwa & 3 others v Independent Electoral Boundaries Commission & another [2013] KECA 56 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st appellant's removal from the party list without a hearing was lawful
The appeal succeeds; the 1st appellant demonstrated she was condemned unheard and the High Court erred in dismissing her case.
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.
Whether the 2nd appellant's complaint of a typographical error in publication of names was established
Dismissed; the identity of the nominee was a factual issue satisfactorily and procedurally dealt with by the Committee and the High Court.
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.
Whether the 3rd and 4th appellants proved their allegations of invalid nominations
Both appeals dismissed; allegations unsupported by evidence fail, and adverse orders cannot be made against a non-party without a hearing.
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.
Legal principles established
#- 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
#- 1.Allow the 1st appellant's appeal and set aside the High Court's dismissal of her case
- 2.IEBC to proceed to gazette the 1st appellant as the duly elected special member under the general category for Laikipia County Assembly
- 3.Dismiss the appeals of the 2nd, 3rd and 4th appellants
- 4.Costs of the appeal against the 1st respondent in respect of the 1st appellant
- 5.Each party to bear their own costs in relation to the appeal by the 2nd, 3rd and 4th appellants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.