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Court of AppealAllowedCivil Appeal No. 172 of 2017· [2017] KECA 323 (KLR)

Yasir Noor Mohammed Noor v Jubilee Party of Kenya & another [2017] KECA 323 (KLR)

Court of Appeal
22 September 2017
RNR.N. NambuyeSKS. Gatembu KairuAMA.K. Murgor
4,744 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that disenfranchising voters in numbers exceeding votes cast invalidates party nominations, restoring a repeat of Jubilee's Nyali nominations.

What this practically means

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Executive summary

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These are the reserved reasons of the Court of Appeal (Nambuye, Gatembu Kairu and Murgor, JJ.A) for a judgment delivered on 30th June 2017 allowing the appellant's appeal against the High Court (Wakiaga, J.) decision of 29th May 2017, which had set aside a PPDT order for a repeat of the Jubilee Party nominations for the Nyali Constituency parliamentary seat. The Court first held that although the appellant had initially filed before the Jubilee Party Tribunal, that tribunal dismissed his appeal for non-attendance without proof of service, contrary to Article 50(1) of the Constitution; he was therefore entitled to proceed directly to the PPDT under section 40(1)(fa) of the Political Parties Act. Second, the Court found that the High Court, as a first appellate court, had failed in its duty to re-evaluate the evidence before the PPDT. Third, on the merits, voting was held in only 13 of 15 polling stations, leaving over 4000 registered voters at Tumaini Church and Fadhil Adhim Primary School disenfranchised, a number exceeding the 3643 votes actually cast. Relying on Morgan v Simpson and Gunn v Sharpe, the Court held this breached Article 38(3)(b) of the Constitution and was an irregularity so significant as to affect the conduct and result of the nomination, not saved by section 83 of the Elections Act. Finally, the Court held the appellant had expressly prayed for a repeat of the nominations, and that the PPDT's order to that effect was correct. No costs order appears in the reasons.

Key legal issues

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01

Exhaustion of internal party dispute resolution mechanisms and jurisdiction of the PPDT

Holding

The JPT's dismissal of the appellant's appeal for non-attendance, without proper service or notification, denied him a fair hearing contrary to Article 50(1) of the Constitution; the appellant was therefore entitled to go directly to the PPDT, which had jurisdiction.

Reasoning

The JPT ruling did not specify the hearing dates, cause lists and SMS messages were not produced, and there was no proof of personal service. Both parties were absent when the appeal was dismissed. This failure of due process justified the appellant abandoning the JPT appeal and filing at the PPDT under section 40(1)(fa) of the Political Parties Act.

p. 4
02

Duty of a first appellate court

Holding

The High Court, as a first appellate court, erred by failing to evaluate the evidence before the PPDT and instead reaching conclusions without such evaluation.

Reasoning

Relying on Abok James Odera and Kenya Ports Authority v Kuston, the Court reaffirmed that a first appellate court must re-evaluate the evidence and draw its own conclusions. The High Court expressly failed to do so, which the Court held would have led to a different conclusion had it been done.

p. 5
03

Substantial compliance with election law and section 83 of the Elections Act

Holding

The failure to hold voting at Tumaini Church and Fadhil Adhim Primary School polling stations, disenfranchising over 4000 registered voters where only 3643 votes were cast, breached Article 38(3)(b) of the Constitution and was not saved by section 83 of the Elections Act.

Reasoning

Applying Lord Denning's propositions in Morgan v Simpson and the decision in Gunn v Sharpe, the Court held the omission was not trivial: the number of voters denied the vote equalled or exceeded those who voted, a quantitative effect sufficient to vitiate the nomination. The evidence was uncontroverted.

p. 8
04

Pleading of a repeat nomination

Holding

The appellant had pleaded for a repeat of the nominations at prayer (c) of the motion and Statement of Complaint; the learned judge erred in finding otherwise, and the PPDT's order of a repeat nomination was correct.

Reasoning

The Court examined the pleadings and found the express prayer 'an order for the repeat of the nominations', which matched what the PPDT ordered. The High Court's finding that no such relief was sought was therefore wrong.

p. 8

Legal principles established

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  • Disputes arising out of party primaries must first be subjected to the internal party dispute resolution mechanism before the PPDT takes cognizance of them, unless the dispute falls outside paragraphs (a), (b), (c) and (e) of section 40(1) of the Political Parties Act.
  • Where a party's internal dispute resolution organ dismisses an appeal without according the appellant a fair hearing, the appellant is entitled to proceed to the PPDT as an alternative dispute resolution forum under section 40(1)(fa) of the Political Parties Act.
  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and arrive at its own independent conclusions.
  • Failure to conduct voting at polling stations without providing an alternative station or notifying voters, thereby disenfranchising a number of voters equal to or exceeding the votes actually cast, is an irregularity so significant as to affect both the conduct and result of the nomination, vitiating it notwithstanding section 83 of the Elections Act.

Court orders

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  1. 1.Appeal allowed, overturning the judgment of the High Court (Wakiaga, J.) dated 29th May 2017 which had set aside the PPDT decision
  2. 2.Restoration of the PPDT's direction for a repeat of the nominations in Nyali Constituency, the Court holding that the appellant had prayed for 'an order for the repeat of the nominations' and that the PPDT 'ordered, and rightly so in our view'

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50 (1)
  • Constitution of Kenya, 2010Article 81 (a) and (e)
  • Elections Act, No. 24 of 2011Section 13 (1) and 13 (2A)
  • Elections Act, No. 24 of 2011Section 83
  • Elections (General) Regulations, 2012Rule 13
  • Political Parties ActSection 9
  • Political Parties ActSection 40 (1) (fa) and 40 (2)
  • Political Parties ActSection 41
  • Political Parties ActSecond Schedule, paragraph 23
  • Court of Appeal RulesRule 32 (5)
  • Representation of People Act 1949 (England)Section 37 (1)

Cases cited (6)

  • Mercy Kirito Mutegi vs Beatrice Nkatha Nyaga & 2 others
    [2013] eKLR
  • Lilian Gogo vs Joseph Mboya Nyamuthe and 4 others
    [2017] eKLR
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Kenya Ports Authority versus Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Morgan vs. Simpson
    [1975] 1 QB 151
  • Gunn vs Sharpe
    [1974] 1 QB 808
On appeal from
High Court at Nairobi
Election Petition Appeal No. 65 of 2017
Jurisdiction invoked
Section 41 of the Political Parties Act, limiting the Court to matters of law in disputes concerning political parties

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, "Yasir Noor Mohammed Noor v Jubilee Party of Kenya & another [2017] KECA 323 (KLR)", Case Analysis (2017). Civil Appeal No. 172 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/323/eng@2017-09-22

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