Lydia Nyaguthii Githendu v Independent Electoral and Boundaries Commission & 17 others; Esther Njogu & another v Independent Electoral and Boundaries Commission & others
The bottom line
#Kenya's Court of Appeal threw out TNA's Nyandarua County nomination lists because submitting two lists broke the law, and gazettement could not save the nominees.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of this Court notwithstanding gazettement of the nominees
The Court had jurisdiction: appeals emanate from High Court decisions under Article 164(3)(a) and section 3 of the Appellate Jurisdiction Act, and gazettement does not immunize beneficiaries of a void process.
The respondents argued the nominees, once gazetted, were deemed elected and could only be removed by election petition within 28 days. The Court held the appeals arose from High Court decisions, giving it constitutional and statutory mandate, and that where the complaint was lodged before gazettement, subsequent gazettement is not immune from a negative decision, since anything done in furtherance of a void act is itself void.
Whether the High Court erred in declining jurisdiction
The High Court unjustifiably withheld jurisdiction; the complaints raised constitutional, statutory and regulatory questions within Article 165(3)(d), not mere party/member disputes for the Political Parties Dispute Tribunal.
The Court found the reliefs sought centred on the constitutionality, legality and regularity of the final party list. The Political Parties Dispute Tribunal under section 39/41 of the Political Parties Act is not clothed with mandate to determine constitutional issues. Declaratory reliefs sought fell within Article 23(3) redress, so the High Court, as the constitutional court charged with supervising administrative bodies, was the proper forum and erred in downing its tools.
Validity of the two TNA party lists and the Commission's handling of them
TNA's submission of two party lists was contrary to law, and the Commission exceeded its mandate by receiving, publishing and relying on both lists; the final list and nominees selected were null and void.
The constitutional scheme envisaged one closed party list per category, from which the Commission would select qualifying persons on a priority basis, rejecting a non-compliant list to allow resubmission. Receiving and publishing two lists and moderating between them was unauthorized. TNA's attempt to regularize by a further list of 16th March 2013 was out of time and could not be accepted.
Whether Article 90(1)(c) regional/ethnic diversity requirement applies to County Assembly lists
A plain reading of Article 90(1)(c) exempts County Assemblies from the regional and ethnic diversity requirement, though the Court noted Article 177, the Elections Act and case law appear to suggest otherwise.
The Court observed the tension but did not resolve it definitively as a ratio; the appeals succeeded on the two-lists ground and the Commission's ultra vires conduct rather than on a settled interpretation of Article 90(1)(c). The declaration of discrimination against Ndaragwa, Olkalao and Oljororok was nonetheless made in the final orders of Appeal No. 238 of 2013.
Adequacy of the High Court judgments
The High Court judgments were bare skeletons that offended Order 21 Rule 4 of the Civil Procedure Rules, which requires a concise statement of the case, points for determination, decision and reasons.
The Court found both first-instance judgments were summary statements that failed to identify issues, apply the law and give reasons, contributing to the finding that the High Court failed to discharge its mandate.
Legal principles established
#- The Political Parties Dispute Tribunal has no mandate to determine constitutional issues; constitutional questions arising from party list disputes fall to the High Court under Article 165(3)(d).
- The Commission exceeds its mandate where it receives and publishes two party lists and relies on both to select final nominees; it was mandated to receive one closed party list.
- A political party that submits a list of candidates to the Commission cannot withdraw or substitute it without adducing verifiable reasons within the prescribed period.
- Gazettement of nominees does not shield them from the consequences of a successful challenge commenced before gazettement; a void act confers no rights.
- A party list that does not observe constitutional demands cannot claim legal or constitutional sanctity.
Court orders
#- 1.Appeal No. 224 of 2013 allowed; High Court order of 12th July 2013 set aside and substituted with an order of certiorari quashing the Dispute Resolution Committee decision of 7th June 2013 and revoking the two TNA nominee party lists published on 15th and 16th May 2013
- 2.TNA ordered to submit within seven days two distinct valid and proper party lists under section 36(1)(e) and (f) of the Elections Act pursuant to Article 90(2)(b) and Article 177(1)(b) and (c) of the Constitution
- 3.IEBC ordered to qualify and select qualified persons from the resubmitted compliant party list within seven days of receipt
- 4.That portion of Kenya Gazette Notice No. 9794 Volume XCV-105 published on 17th July 2013 listing the 4th to 18th respondents as valid nominees revoked
- 5.Appeal No. 238 of 2013 allowed; High Court order set aside and substituted with declarations that the Commission's list violates Articles 90, 98, 174 and 177 of the Constitution and is unconstitutional for discriminating against Ndaragwa, Olkalao and Oljororok Constituencies
- 6.In Appeal No. 238 of 2013, TNA ordered to submit fresh compliant lists within seven days and IEBC to qualify and select nominees within seven days of receipt
- 7.That portion of Kenya Gazette Notice No. 9794 Volume XCV-105 listing the 4th to 18th interested parties as valid nominees revoked
- 8.Costs of both appeals to the appellants, to be borne by TNA and the Commission in equal proportions
- On appeal from
- High Court of Kenya at Nairobi
- H.C. JR. Appl. No. 218 of 2013 and Petition No. 238 of 2013
- Jurisdiction invoked
- Article 164(3) of the Constitution and Section 3 of the Appellate Jurisdiction Act (Cap 9)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lydia Nyaguthii Githendu v Independent Electoral and Boundaries Commission & 17 others; Esther Njogu & another v Independent Electoral and Boundaries Commission & others", Case Analysis (2015). Civil Appeal No. 224 of 2013 (consolidated with Civil Appeal No. 238 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/984/eng@2015-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.