Maxwell Ochieng’ v Orange Democratic Movement & George Omondi (Civil Appeal 170 of 2017) (Civ) [2017] KECA 294 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that party primary disputes fall under the Political Parties Act, ordered ODM to redo Korogocho Ward nominations, and refused to declare the appellant winner.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction over this appeal arising from party primaries, given section 85(1) of the Elections Act
- 2.What constitutes a point of law as opposed to a point of fact
- 3.Whether the nomination exercise was conducted in accordance with the 1st respondent's Constitution, Election and Nomination Rules and espoused the values of free and fair elections under Article 81(e) of the Constitution
- 4.Whether the variation of results at Kariobangi Baptist Polling Centre was proved, including whether the learned judge erred in disregarding the affidavits of two contestants
- 5.What relief, if any, should issue on the established anomalies
Key legal issues
#Jurisdiction of the Court of Appeal over appeals from party primary disputes
The Court has jurisdiction on points of law only under section 41(2) of the Political Parties Act; section 85(1) of the Elections Act does not apply because the dispute arises from party primaries, not an election petition.
The two Acts define 'election' differently and provide different dispute-resolution mechanisms. The Elections Act covers presidential, parliamentary or county elections, whereas the Political Parties Act covers the selection of candidates by vote within a party. Since the dispute originated in party primaries, the Political Parties Act governs, and appeals lie to the Court of Appeal on points of law only.
What constitutes a point of law
Adopting the Supreme Court's guidance in Zacharia Okoth Obado and Gatirau Peter Munya, 'matters of law only' includes interpretation or application of constitutional or statutory provisions and conclusions based on no evidence or perverse conclusions.
The Court adopted the Supreme Court's articulation that a point of law involves the interpretation or construction of a provision, its application to facts or evidence on record, or trial court conclusions based on no evidence, unsupported by established facts, or so perverse or illegal that no reasonable tribunal would reach them. It is not enough that the trial judge might have reached a different conclusion.
Whether the High Court erred in disregarding material evidence of alteration of results
The learned judge failed to consider the affidavits of Albert Owino Ojing and Paul Ochieng Owuoth, which showed a variation of results at Kariobangi Baptist Polling Centre; had she considered them, she would most likely have reached a different conclusion.
The two deponents were contestants in the same primaries and exhibited results from their agents showing variation of the Kariobangi Baptist results. Ignoring this evidence meant the finding that the exercise was free and fair rested on an incomplete assessment of the record. This amounted to a point of law - a conclusion unsupported by the established evidence.
The appropriate remedy where nomination anomalies are established
Because the Returning Officer was not called as a witness, the presiding officer did not testify, the 1st respondent did not participate, and the certificate of return lacked required signatures, the proper remedy was to set aside the High Court judgment and order a fresh nomination.
Although variation of results was established, the evidence was insufficient to declare the appellant the undisputed winner and compel issuance of a nomination certificate. Doubts about the Returning Officer's appointment and the unsigned certificate of return compounded the irregularities. Ordering a fresh nomination in accordance with the party's Election and Nomination Rules best served the constitutional dictates of Article 38.
Legal principles established
#- A dispute emanating from party primaries is governed by the Political Parties Act, not the Elections Act; appeals from the High Court in such disputes lie to the Court of Appeal on points of law only.
- A court may compel issuance of a nomination certificate to a primary contestant only on compelling, clear and unequivocal evidence that the actual results reflect the will of the electorate; otherwise a fresh nomination exercise is the appropriate remedy.
- A returning officer in party primaries must issue a certificate of return showing the total votes garnered by each candidate in every polling station, signed by the candidates or their agents, as required by the party's Election and Nomination Rules.
Court orders
#- 1.Appeal partially allowed
- 2.High Court judgment dated 2nd June 2017 set aside
- 3.1st respondent ordered to conduct a fresh nomination exercise for the position of member of County Assembly, Korogocho Ward, Ruaraka Constituency within Nairobi County, in accordance with its Election and Nomination Rules
- 4.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition Appeal No. 79 of 2017
- Jurisdiction invoked
- Section 41(2) of the Political Parties Act - appeals from the High Court on points of law and fact, and on points of law to the Court of Appeal and Supreme Court
Relief refused
#An order compelling the 1st respondent to issue the appellant the final nomination certificate as the undisputed winner
There was not compelling, clear and unequivocal evidence that the actual results reflected the will of the electorate, requiring a fresh nomination exercise instead
Costs
Each party was ordered to bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
this appeal does not arise from an election petition, whose disputes are determined in accordance with the provisions of the Elections Act. What gave rise to the appeal is a dispute emanating from party primaries and the relevant statutory provision therefore is the Political Parties Act.
For a court to make such an order, there has to be compelling, clear and unequivocal evidence that the actual results reflect the will of the electorate in accordance with the dictates of Article 38 of the Constitution of Kenya, 2010.
Had the Court taken the two affidavits into consideration, we believe it would most likely have arrived at a different conclusion.
In view of the aforesaid anomalies, this Court deemed it appropriate to set aside the High Court’s judgment and order the 1st respondent to conduct a fresh nomination exercise in accordance with its Election and Nomination Rules.
On 23rd June, 2017 this Court partially allowed this appeal, set aside the High Court judgment dated 2nd June, 2017 and ordered the 1st respondent to conduct fresh nomination exercise for the position of member of County Assembly, Korogocho Ward, (the Ward) Ruaraka constituency within Nairobi County, in accordance with the 1st respondent’s Election and Nomination Rules.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maxwell Ochieng’ v Orange Democratic Movement & George Omondi (Civil Appeal 170 of 2017) (Civ) [2017] KECA 294 (KLR)", Case Analysis (2017). Civil Appeal No. 170 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/294/eng@2017-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.