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Court of AppealDismissedCivil Appeal No. 164 of 2017· [2017] KECA 287 (KLR)

Pamela Awuor Oyoo v Orange Democratic Movement & 2 others [2017] KECA 287 (KLR)

Court of Appeal of Kenya
29 September 2017
RNR. N. NambuyeDMD. K. MusingaSKS. Gatembu Kairu
4,280 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 dismissed a failed ODM nominee's appeal because she skipped the party's internal dispute process before going to the tribunal.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Nairobi (Nambuye, Musinga and Gatembu Kairu, JJA) giving reasons for the dismissal, announced on 23rd June 2017, of Pamela Awuor Oyoo's appeal against the decision of Luka Kimaru, J in Election Petition Appeal No. 88 of 2017, which had set aside PPDT orders declaring her the ODM nominee for Migosi County Assembly Ward, Kisumu County, in favour of Victor Rodgers Ochieng. The Court confined itself to its restricted appellate mandate under section 41(2) of the Political Parties Act, framing the core issue as whether the PPDT had jurisdiction to entertain the appellant's complaint. Reading section 40(1)(fa) with the mandatory section 40(2), the Court held that although a party may in principle access the PPDT directly over party-primary disputes, the appellant failed to prove that her attempts to invoke ODM's internal dispute resolution mechanism were frustrated; the absence of supportive proof was fatal, since it was incumbent on her to ensure the Tribunal was properly clothed with jurisdiction. The Court also endorsed the finding that service of the complaint on the 2nd respondent by SMS and WhatsApp breached Rule 10 of the PPDT (Procedure) Regulations, 2017, and would have vitiated the PPDT's decision had jurisdiction existed; and it affirmed that want of jurisdiction is a pure point of law determinable without recourse to evidentiary facts, so no fair-hearing prejudice arose from the Judge's treatment of the record. The High Court's judgment was affirmed and the appeal dismissed.

Key legal issues

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01

Whether the PPDT had jurisdiction to entertain the appellant's complaint before exhaustion of the party's internal dispute resolution mechanism

Holding

The PPDT lacked jurisdiction. Section 40(1)(fa) permits direct access, but section 40(2) makes prior recourse to the party's IDRM mandatory for listed disputes; the appellant made no proven attempt to access the IDRM, so her claim failed.

Reasoning

The court read section 40(1) together with section 40(2) of the Political Parties Act, which is couched in mandatory terms. Although the appellant alleged that ODM's IDRM officials had gone into hiding, she produced no documentary or other supportive proof of that assertion before the PPDT, the High Court or this Court. The learned Judge found as a fact that no such proof existed, and this Court affirmed that finding, holding the failure fatal to her case.

p. 7
02

Whether the mode of service of the complaint on the 2nd respondent before the PPDT was regular

Holding

Service by SMS and WhatsApp was not a mode permitted by Rule 10 of the PPDT (Procedure) Regulations, 2017, which allows only direct service or advertisement in a newspaper of national circulation; the service was flawed and would have vitiated the PPDT's decision had it had jurisdiction.

Reasoning

The court agreed with the High Court that the appellant's service of her complaint on the 2nd respondent by text message and WhatsApp was not one of the two modes prescribed by Rule 10. The Tribunal could not ride roughshod on its own rules, and condemnatory orders issued to an unserved affected party breached the rules of natural justice. This ground, though insufficient alone, reinforced the conclusion that the PPDT proceedings were flawed.

p. 7
03

Whether the High Court erred in acting on documents not tendered before the PPDT and in denying the appellant a fair hearing

Holding

No error. The question of jurisdiction was a pure point of law determinable on the documents the appellant herself placed before the PPDT; the impugned documentation had been transmitted as part of the PPDT record, and the appellant suffered no prejudice.

Reasoning

The 2nd respondent showed that the record transmitted to the High Court included his review application documents, so no new evidence was introduced for the first time. In any event, the learned Judge could have decided the jurisdictional question on the appellant's own filings, which contained no proof of frustrated IDRM access. The appeal was decided on a point of law and the fair-hearing complaint did not arise.

p. 7

Legal principles established

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  • An aggrieved party invoking the exception in section 40(1)(fa) of the Political Parties Act to access the PPDT without exhausting the party's internal dispute resolution mechanism must prove that attempts to access the IDRM were frustrated; otherwise the PPDT lacks jurisdiction.
  • Want of jurisdiction is a pure point of law that may be determined without recourse to evidentiary facts.
  • Service of a complaint before the PPDT in a manner not prescribed by the PPDT (Procedure) Regulations is flawed and would vitiate the Tribunal's decision.

Court orders

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  1. 1.Dismissal of the appellant's appeal, with reasons given in the judgment of 29th September 2017 (appeal already dismissed by judgment dated 23rd June 2017)

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 82(1)(b), 88(1), 88(5)
  • Political Parties ActSection 40(1)(a), (fa), Section 40(2), Section 41(2)
  • Political Parties Disputes Tribunal (Procedure) Regulations, 2017Rule 10(1), (2)(a), (b)
  • Civil Procedure RulesOrder 42
  • ODM Nomination RulesRegulation 18.8

Cases cited (4)

  • Selvarajan v Race Relations Board [1976] 1 All ER 12
    [1976] 1 ALLER 12 at page 19
  • Berezousky v Michaels & Others (consolidated with Glouchkou v Michaels and Others)
  • David Kinuthia Macharia v The Immigration Appeal Tribunal
  • George Onyango Oloo v ODM & 3 Others [2017] eKLR
    [2017] eKLR
On appeal from
High Court of Kenya at Nairobi
Election Petition Appeal No. 88 of 2017
Jurisdiction invoked
Section 41(2) of the Political Parties Act (appeal lying to the Court of Appeal on points of law)

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, "Pamela Awuor Oyoo v Orange Democratic Movement & 2 others [2017] KECA 287 (KLR)", Case Analysis (2017). Civil Appeal No. 164 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/287/eng@2017-09-29

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