Beatrice Nyaboke Oisebe v Independent Electoral and Boundaries Commission 2 others [2013] KECA 211 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that only a political party controls its nomination lists to IEBC, and a challenger must prove actual default to overturn a nomination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Nomination Disputes Resolution Tribunal and the High Court based their decision on a non-existent party list
- 2.Whether the 2nd respondent's name appeared on UDF's first submission of the nominees list to IEBC
- 3.Whether the High Court and the Tribunal failed to analyse the evidence on record
- 4.Whether the High Court and the Tribunal failed to read the law so as to arrive at a just conclusion
Key legal issues
#Source and sanctity of party lists for nomination to special seats in county assemblies
The list submitted by UDF and received by IEBC (date-stamped 22nd February 2013) was the operative list; the 2nd respondent was properly nominated from the gender top-up slot while Kisii County received no marginalized-group slot, so the appellant could not benefit
The court examined the documents. The appellant's 'First Submission' list did not state the category of nomination and its source was not disclosed. The IEBC/UDF list showed the appellant on the marginalized list and the 2nd respondent on the gender top-up list. Since Kisii County had no marginalized slot, only the gender top-up slot could be filled, and it went to the 2nd respondent as UDF recommended.
Whether the Tribunal and High Court failed to analyse the evidence and the law
Both organs considered the evidence and the law before them; the appellant produced no material supporting the claim that they failed to do so
The committee dismissed the complaint on the basis that the respondent was rightly on the list, and the High Court determined the reference after reading the pleadings and hearing submissions. Though the two decisions may not have quoted specific statutory or constitutional provisions, the import of the law, including that only political parties have the core mandate to prepare nomination lists, was clear in their decisions.
Statutory framework for nomination under Section 34 of the Elections Act and Articles 90 and 177
Section 34 of the Elections Act, 2011 requires a political party nominating candidates under Article 177(1)(a) to submit a party list in accordance with Article 177(1)(b) and (c) for special seats
The court read Article 177(1)(b) and (c) of the Constitution as providing for special seat members necessary for the gender two-thirds rule and for members of marginalized groups. Section 34(4) of the Elections Act operationalises this by requiring the political party itself to submit the party list in order of priority to IEBC, which then allocates slots.
Legal principles established
#- It is the political party, and it alone, which prepares and submits the party nomination list to IEBC in order of priority, and such lists are not subject to amendment during the term of Parliament or County Assembly
- A complaint's basis before the Nomination Disputes Resolution Committee must be consistent with the case later advanced before the High Court on judicial review
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- JR Case No. 215 of 2013
- Jurisdiction invoked
- Appeal from the High Court in judicial review proceedings arising from nomination disputes under Article 90 and Article 177 of the Constitution and Section 74 of the Elections Act, 2011
Relief refused
#Setting aside the nomination of the 2nd respondent to the Kisii County Assembly in favour of the appellant
UDF availed a list to IEBC with the 2nd respondent for gender top-up and she was duly and validly nominated; no default in the nomination process was demonstrated
Costs
The appellant to pay costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, this appeal is dismissed. The High Court dismissed the appellant’s reference with no order as to costs. But we are of the view here that the appellant do pay costs to the respondents.
In sum it is the party, and it alone, which proposes a list for party nominations which is submitted to IEBC in order of priority. Such lists are not subject to amendment during the term of Parliament or County Assembly.
From the foregoing we were satisfied that UDF availed a list to IEBC for the purpose of nominations with the 2nd respondent for gender top-up. She was thus duly and validly nominated.
the appellant had 2 different bases to present her complaint, first to the committee and then to the High Court. They had no nexus or consistency.
It was not demonstrated that there was any default in the nomination process or IEBC amended the list submitted to it, hence our conclusion that the 2nd respondent was validly nominated.
Issues in the judgment
#Judgment paraphrases the grounds of appeal rather than reproducing them verbatim, and quotes the committee's decision twice with slightly different wording ('the respondent is rightly on the list' vs 'the respondent was rightly on the list'), creating minor internal inconsistency in the quoted material
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mohamed Abass Sheikh v Boundaries Commission (IEBC) & 2 others [2018] KEMC 51 (KLR)[2018] KEMC 51 (KLR)15 Feb 2018
Cite this brief
#Cite this brief
Caselaw, "Beatrice Nyaboke Oisebe v Independent Electoral and Boundaries Commission 2 others [2013] KECA 211 (KLR)", Case Analysis (2013). Civil Appeal No. 179 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/211/eng@2013-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.