Kiliswa v Independent Elections & Boundaries Commission & 2 others (Election Appeal 201 of 2013) [2014] KECA 526 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that judicial review challenges how decisions are made, not whether the decision itself was right or wrong.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review jurisdiction
The High Court on judicial review examines the decision-making process, not the merits; findings of fact by the Committee cannot be impeached in judicial review proceedings.
The Court reaffirmed a long line of decisions holding that judicial review concerns whether the decision-maker had jurisdiction, observed natural justice and considered relevant matters. The appellant's grounds were essentially challenges to findings of fact by the Committee and the High Court. The Committee, having seen and heard the witnesses, preferred the respondents' evidence, including the party membership card and the Secretary General's affidavit; such factual findings cannot be a basis for quashing the decision.
Whether the Committee failed to give reasons
The Committee's decision indicated that detailed reasons would be available at IEBC headquarters and on its website, and the appellant did not aver that reasons were not given; the ground failed.
The appellant relied only on the concluding dismissal portion of the Committee's ruling, omitting the passage stating that the detailed reasoned judgment would be available at IEBC headquarters and on the website. The Court found her omission disingenuous, and agreed with the High Court that even on this ground the application for judicial review lacked merit. The obligation to give reasons under Article 47 was thus satisfied on the record.
Responsibility for party lists for gender top-up seats
The composition and ranking of party lists is the responsibility of the political party, subject to compliance with statutory requirements; the IEBC designates nominees from lists submitted by parties.
Article 90 provides for election of gender top-up seats by proportional representation through party lists. Under section 34 of the Elections Act, parties submit lists in order of priority alternating between genders, and a nominated person must be a member of the party as at the date of submission. The IEBC merely draws from such lists proportionately under Article 177(1)(b); it does not compose lists. The appellant's claim that the IEBC usurped the party's role was untenable.
Legal principles established
#- In judicial review, the High Court is not concerned with the merits of the impugned decision of an inferior tribunal but only with the decision-making process, jurisdiction and observance of natural justice.
- An appeal to the Court of Appeal from judicial review proceedings is limited to whether the grounds for judicial review were established; it is not a re-evaluation of evidence.
- It is the responsibility of the political party to determine which of its members appear in the party list and their order of priority, subject to compliance with legal requirements.
Court orders
#- 1.The appeal is dismissed
- 2.Costs awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- J.R. No. 223 of 2013
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a decision of the High Court in judicial review (judgment of the High Court dated 12th July, 2013 in J.R. No. 223 of 2013); no specific article cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiliswa v Independent Elections & Boundaries Commission & 2 others (Election Appeal 201 of 2013) [2014] KECA 526 (KLR)", Case Analysis (2014). Civil Appeal No. 201 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/526/eng@2014-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.