Fredrick Odhiambo Oyugi v Orange Democratic Movement & 2 others [2017] KECA 262 (KLR)

The Court examined Article 88(4)(e) of the Constitution, Section 4(e) of the Independent Electoral and Boundaries Commission Act and Section 74(1) of the Elections Act, which confer on the IEBC responsibility for settlement of electoral disputes including those arising from nominations. It contrasted this with Section 40 of the Political Parties Act conferring jurisdiction on the PPDT, including disputes arising out of party primaries, and concluded both bodies are clothed with jurisdiction over nomination disputes. The 2016 amendment adding Section 40(fa) was intended to address concurrent jurisdiction, not to oust the IEBC's, and a memorandum of understanding could not defeat constitutional jurisdiction.

Since the IEBC did have jurisdiction over the appellant's nomination dispute, the Dispute Resolution Committee's dismissal of the complaint for want of jurisdiction was erroneous, as was the High Court's concurrence with that view. The Court, whose appellate jurisdiction was confined to points of law, did not pronounce on the merits of the claim or on the alleged breach of legitimate expectation, remitting the dispute instead for determination on its merits within 48 hours given the proximity of the 2017 general election.

The Court adopted the High Court's purposive distinction in Kyalo Peter Kyulu between the IEBC's original jurisdiction under Section 74 of the Elections Act and the PPDT's role, but expressly qualified the characterisation of the PPDT's jurisdiction as merely appellate, holding both bodies have jurisdiction in relation to nomination disputes. It noted the pressing need for law reform to provide a clear framework and avoid parallel streams of adjudication leading to confusion and conflicting decisions.