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Court of AppealPartially AllowedCivil Appeal 271 of 2017· [2017] KECA 283 (KLR)

Wilson Ong’ele Ochola v Orange Democratic Movement & 3 others

Court of Appeal of Kenya
7 August 2017
726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled Ochola was validly on the ballot as ODM's candidate, setting aside a High Court order that had de-gazetted him.

What this practically means

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Executive summary

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This is an ex tempore judgment of the Court of Appeal at Nairobi (Nambuye, M'inoti and Odek, JJ.A.) delivered on 7th August 2017, the day before the general elections, in an appeal by Wilson Ong'ele Ochola against the judgment of Lesiit, J. of 1st August 2017 in Election Petition No. 131 of 2017. The dispute arose from ODM's primaries for the Utalii Ward MCA seat, where the appellant and the 3rd respondent both sought nomination. After a protracted chain of proceedings before ODM's Disputes Tribunal, the Political Parties Disputes Tribunal, the IEBC Dispute Resolution Committee and the High Court, Onguto J. had directed ODM to nominate its candidate in accordance with its constitution and nomination rules and barred gazettement until the PPDT certified compliance with its 31st May 2017 decision. Lesiit J. later held that the PPDT's acceptance of the appellant's direct nomination amounted to sitting on appeal from the High Court, and directed the IEBC to de-gazette the appellant. The Court of Appeal held that Lesiit J. misapprehended Onguto J's final order and erred in that finding. It allowed the appeal, set aside the judgment and decree of 1st August 2017, and reserved full reasons to 22nd September 2017. No costs order was recorded.

Key legal issues

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01

Whether the PPDT, by accepting ODM's direct nomination of the appellant, had impermissibly sat on appeal from the High Court

Holding

The High Court erred; Onguto J. had appreciated that ODM's constitution provided for universal suffrage in specific areas, had left the PPDT decision of 31st May 2017 standing, and had only prohibited gazettement until the PPDT certified compliance - which the PPDT had done on 18th May 2017

Reasoning

The Court found that Lesiit J. misapprehended Onguto J's final order. That order directed ODM to nominate its candidate in accordance with its constitution, election and nomination rules, and prohibited IEBC from gazetting any nominee until ODM complied with the PPDT order of 31st May 2017 and the PPDT certified compliance. The PPDT's certification that ODM had duly complied meant the appellant's direct nomination did not offend the High Court's order, and the PPDT had not sat in appeal over it.

p. 2
02

Validity of the appellant's nomination as ODM candidate for MCA, Utalii Ward

Holding

The appellant's name was validly on the ballot paper as the ODM candidate; the order directing the IEBC to de-gazette him was set aside

Reasoning

Because the impugned judgment rested on the erroneous finding that the PPDT had purported to appeal a High Court decision, its direction to de-gazette the appellant could not stand. Setting aside that judgment restored the validity of the appellant's nomination in time for the elections scheduled for 8th August 2017.

p. 1

Legal principles established

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  • A superior court order directing a party to proceed with nomination in accordance with its constitution and nomination rules leaves intact a prior valid PPDT decision, and a subsequent tribunal decision upholding compliance with such an order does not amount to an appeal from the High Court
  • Where extreme urgency of an appeal so requires, the Court of Appeal may render judgment immediately and reserve the reasons to a later specified date

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment and decree of Lesiit, J. dated 1st August 2017 are set aside
  3. 3.Full reasons for the judgment were reserved to Friday, 22nd September 2017
On appeal from
High Court of Kenya
Election Petition No. 131 of 2017
Jurisdiction invoked
Appeal from the judgment and decree of the High Court in an election-related dispute under the Court's appellate jurisdiction (specific enabling provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wilson Ong’ele Ochola v Orange Democratic Movement & 3 others", Case Analysis (2017). Civil Appeal 271 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/283/eng@2017-08-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.