Emmanuel A Achayo v Orange Democratic Movement Party & 4 others [2017] KECA 230 (KLR)
The bottom line
#Kenya's Court of Appeal cancelled an ODM nomination because results were never tallied or announced, ordering fresh nominations within 48 hours.
What this practically means
#Executive summary
#Key legal issues
#Declaration of results in party primaries
Failure by the returning officer to tabulate, collate and announce results vitiates the nomination; a nominee cannot be declared where no results were declared and no vote count is ascertainable
Rule 18.8 of the ODM Election and Nomination Rules required the returning officer to tabulate and collate certified results from presiding officers and promptly announce them in the presence of candidates or agents, then issue a certificate of return. The returning officer himself deposed that results were never declared, corroborated by the appellant's chief agent. The 3rd respondent could not state by how many votes she was nominated. Nomination certificates issue through a documented process, not as a matter of course.
Duty of the High Court on appeal from the Political Parties Disputes Tribunal
The High Court erred in failing to address the core question whether the results were declared, despite rule 18.8 having been cited to it
Although the provisions of rule 18.8 were cited before the learned Judge, he did not address his mind to the core question whether the results were declared. A nomination must be supported by an evidentiary trail through the County Elections Board to the National Elections Board. Because no such evidence existed, the High Court's upholding of the Tribunal decisions could not stand, and the Tribunal's confirmations were themselves unsupportable.
Review application under Order 45 Rule 1
The High Court properly declined review because the alleged new evidence was always available and thus did not meet Order 45 Rule 1 of the Civil Procedure Rules
On the ground faulting the rejection of the application for review, the court agreed with the High Court that the requirements of Order 45 Rule 1 of the Civil Procedure Rules were not met. In particular, the alleged new evidence, being the claim that the 3rd respondent belonged to the Democratic Congress Party, was always available at the material time and therefore did not qualify as new and important matter for review.
Legal principles established
#- A returning officer in a party nomination must tabulate, collate and promptly announce results in the presence of candidates or their agents and issue a certificate showing votes per candidate; a party nomination is only valid where there is an evidentiary trail from the polling centre to the National Elections Board culminating in issuance of a nomination certificate
- Party nominations must be free, fair, accurate, transparent, accountable and credible, conducted in accordance with the Constitution, the Political Parties Act and the party's constitution, election and nomination rules
Court orders
#- 1.Appeal allowed with costs
- 2.Judgment of the High Court delivered on 21st May 2017 set aside
- 3.1st respondent ordered to conduct fresh nominations for Gem Central Ward Member of County Assembly within forty eight (48) hours from 4 pm on 6th June 2017
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 46 of 2017
- Jurisdiction invoked
- Section 41 of the Political Parties Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmanuel A Achayo v Orange Democratic Movement Party & 4 others [2017] KECA 230 (KLR)", Case Analysis (2017). Civil Appeal No. 141 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/230/eng@2017-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.