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Court of AppealPartially AllowedCivil Appeal No. 266 of 2013· [2013] KECA 60 (KLR)

Linet Kemunto Nyakeriga & another v Ben Njoroge & 2 others [2013] KECA 60 (KLR)

Court of Appeal
20 December 2013
PWP. N. WakiWilliam OukoW. OukoSKS. Gatembu Kairu
4,991 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 confirmed the IEBC cannot rearrange closed party lists; parties alone decide who tops their nominee lists.

What this practically means

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Executive summary

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The Court of Appeal dismissed an appeal against a High Court election-petition judgment that had nullified the gazetttement of the two appellants as senators representing persons with disabilities. TNA and ODM had each submitted closed party lists ranking Ben Njoroge and Godliver Nanjira Omondi first for the two disability seats in the Senate, but the IEBC reversed the order of priority on the ground that it was constitutionally necessary to balance the physical and visual categories of disability. The Court held that Kenya's party list system is a closed one: parties choose and rank their candidates, seats are filled in the order appearing on the list, and the IEBC has no power to rearrange a list or select any candidate other than the party's preferred nominee. The IEBC's mandate under Article 88(4) is limited to regulating the nomination process and monitoring compliance, not participating in actual nomination. 'Designate' in Section 36(4) of the Elections Act means a formal declaration of the elected candidates, not a power to choose them. Balancing categories of disability is a decision for political parties. The Court also held the election court was entitled, having found the wrong candidates elected, to revoke the gazette notice and direct the IEBC to gazette the correct candidates. The appeal succeeded only on costs: the judge's refusal of costs to the appellants, who were not to blame, was set aside, and the IEBC was ordered to pay costs of the petition and appeal to the appellants and the respondents.

Key legal issues

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01

Whether the IEBC may rearrange closed party lists to achieve diversity among categories of disability

Holding

It may not; the balancing of categories of disability is a matter for political parties, not the IEBC

Reasoning

Kenya adopts a closed list system under which the party fixes the order and seats are filled in the order on the list. The IEBC's desire to balance physical and visual disabilities, though genuine, was not a criterion of the Constitution, statute or its own guidelines. Its mandate under Article 88(4)(d) and (k) is only to regulate the nomination process and ensure compliance, not to participate in actual nomination. Only the parties may decide representation of disability categories.

p. 8
02

The scope of the IEBC's power to 'designate' under Section 36(4) of the Elections Act

Holding

'Designate' is an act of formal declaration of the elected candidates, not a power to choose or appoint them

Reasoning

Section 36(4) must be read with Articles 88, 90, 248(2)(c) and 249 of the Constitution as an integrated whole. The IEBC regulates the nomination process and monitors compliance but cannot nominate for parties, not least because under Section 31(2) it only supervises party nominations upon invitation. 'Designatio personae' means designation by class or category rather than by name; the IEBC was required to formally declare the 1st and 2nd respondents Senators.

p. 9
03

Whether the High Court as an election court could direct the IEBC to gazette the correct candidates

Holding

It could; once it found the wrong candidates were elected it was under a duty to correct the mistake

Reasoning

The proceedings before the High Court were an election petition, not a judicial review application. Having found the wrong candidates were elected, the court was obliged to revoke the gazette notice and order the body charged with elections to gazette the correct candidates, since proceedings are only fully concluded when the judgment can be perfected. The Court could not fault the judge on this ground.

p. 9
04

Whether the divergent conclusions in H.C. Petition No. 13 of 2013 undermined the judgment

Holding

The inconsistency could not be an issue for determination in this bench, as an appeal in that matter was pending

Reasoning

The appellants argued that the impugned judgment and the judgment in H.C. Petition No. 13 of 2013 (Lydia Mathia v Naisula Lesuuda & IEBC), though adjudicated simultaneously before the same judge on similar facts, lacked doctrinal cohesion. The Court held that since an appeal had been preferred against that decision, the inconsistency was not a matter for it to resolve here.

p. 9
05

The treatment of the rights of persons with disabilities in the electoral framework

Holding

International instruments such as the Convention on the Rights of Persons with Disabilities, ratified by Kenya, form part of Kenyan law and inform the constitutional guarantee of political participation for persons with disabilities

Reasoning

The Court traced the recognition of disability rights from the former Constitution's 'special interests' provisions, the Persons with Disabilities Act 2003, and international instruments including the Universal Declaration of Human Rights, the ICCPR, the African Charter and the CRPD. Having ratified the CRPD, and by dint of Article 2(6) of the Constitution, the Convention forms part of the laws of Kenya, guaranteeing equal participation in political life.

p. 4

Legal principles established

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  • Under a closed party list system, the IEBC has no power to rearrange the order of a party list or select a candidate other than the party's preferred candidate in order of priority; the power over reserved seats resides with the political parties
  • The IEBC may only reject a party list where it contains nominees lacking constitutional and statutory qualifications, in which case the party must submit another name
  • 'Designate' in Section 36(4) of the Elections Act means formally declaring the elected persons by name or title after elections, not choosing among competing nominees

Court orders

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  1. 1.The order of costs stating 'No costs to the 2nd and 3rd respondents' was set aside
  2. 2.The IEBC ordered to pay costs of the petition and the appeal to the appellants and the 1st and 2nd respondents
  3. 3.The appeal was dismissed save for the order on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(6)
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 29 (Convention on the Rights of Persons with Disabilities)
  • Constitution of Kenya, 2010Article 54
  • Constitution of Kenya, 2010Article 88(1), (4), (5)
  • Constitution of Kenya, 2010Article 90(1), (2), (3)
  • Constitution of Kenya, 2010Article 97(1)(c)
  • Constitution of Kenya, 2010Article 98(1)(b), (c), (d)
  • Constitution of Kenya, 2010Article 177(1)(b), (c)
  • Constitution of Kenya, 2010Article 248(2)(c)
  • Constitution of Kenya, 2010Article 249
  • Constitution of Kenya, 2010Article 260
  • Elections ActSection 2
  • Elections ActSection 31(2)
  • Elections ActSection 34(1), (5), (10)
  • Elections ActSection 36(1)(d), (2), (4)
  • Elections ActSection 37(1), (2), (3), (4)
  • Elections ActSection 75(3)
  • Elections (General) Regulations, 2012Regulation 54(1), (2)
  • Persons with Disability Act, No. 14 of 2003null
  • Former (Independence) ConstitutionChapter V; Section 33
  • Universal Declaration of Human Rights (1948)null
  • International Covenant on Civil and Political Rights (1966)null
  • African Charter of Human and People's Rights (1981)null
  • Convention on the Rights of Persons with Disabilities (2006)Articles 29, 35(1)

Cases cited (1)

  • Lydia Mathia V. Naisula Lesuuda & IEBC (H.C. Petition No. 13 of 2013)
On appeal from
High Court of Kenya at Nairobi
High Court Petition No. 14 of 2013
Jurisdiction invoked
First appeal from the High Court sitting as an election court under the Constitution and Elections Act (appeal against the judgment and decree of the election court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Linet Kemunto Nyakeriga & another v Ben Njoroge & 2 others [2013] KECA 60 (KLR)", Case Analysis (2013). Civil Appeal No. 266 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/60/eng@2013-12-20

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