National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 others [2017] KECA 342 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the IEBC's manual fallback for voter identification in the 2017 election, ruling courts won't micromanage the electoral body unless it breaks the law.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of section 44A of the Elections Act - the 'complementary mechanism'
The complementary mechanism contemplated need not be electronic or parallel to the section 44 system; it may include the printed register of voters, provided it is simple, accurate, verifiable, secure, accountable and transparent
Reading section 44A together with Articles 38, 81 and 86 of the Constitution, the legislature's plain intention was that no eligible registered voter be disenfranchised by technology failure. Since all technology can fail, a fall-back mechanism is necessary; withdrawing the regulations would leave the IEBC with no alternative system to fulfil constitutional dictates.
Judicial deference to the operational independence of the IEBC
The IEBC enjoys constitutional operational independence in choosing how to execute its electoral mandate, and courts should not interfere absent wilful neglect or violation
Separation of powers, though not expressly named, runs through the Constitution. Institutions such as the IEBC are clothed with discretion as to the procedure they employ so long as it is lawful. The appellant's apprehension about a manual register was assuaged by the internal memo, whose directions were simple, verifiable, transparent and accountable in line with Article 86(a).
Public participation in the enactment of Regulations 69, 82 and 83
There was adequate public participation through parliamentary committee consultations, memoranda from stakeholders including the appellant's constituent parties, explanatory memoranda and parliamentary debate
The chronology of enactment was not disputed; an inter-parliamentary joint committee consulted the public; the regulations were laid before Parliament under section 109 of the Elections Act; further documentary evidence of stakeholder meetings was admitted by consent and was unchallenged. The court was satisfied there was public participation.
Delay in seeking relief and denial of remedies
The appellant's 11th-hour petition, filed against regulations enacted on 21st April 2017 with an election date cast in stone, justified the trial court's refusal of orders
Guiding principles for denying relief include undue delay, unreasonable or unmeritorious conduct, acquiescence or waiver, futility, administrative chaos, public inconvenience and the effect on third parties affected by the scheduled general election.
Determination of issues not pleaded, and standing of a non-juridical person
The trial court properly declined to strike out the petition despite slovenly pleadings, because the issues were discernible from pleadings, submissions and sworn depositions and the right to a hearing is fundamental
Under Order 15 rule 2 of the Civil Procedure Rules a court may frame issues, and a court may base its decision on an unpleaded issue if it was left to the court for decision, as the parties here litigated and addressed the court on those issues without objection.
Legal principles established
#- Section 44A requires only a mechanism that adds to or improves the electronic system, not one identical to it; a complementary mechanism need not be electronic and only sets in when the electronic system fails
- Courts should not police or direct independent constitutional bodies in the exercise of their mandates absent wilful neglect or violation of constitutional or statutory functions
- A court may determine an unpleaded issue where the parties themselves canvassed it, and slovenly pleadings do not warrant striking out where the right to a hearing is engaged and substantive justice favours determination
Court orders
#- 1.No basis for setting aside the High Court judgment save for the prayer for further orders and costs
- 2.The contents of the 1st respondent's Internal Memo dated 27th July 2017 shall be adhered to by all concerned persons in application of Regulations 69 and 83
- 3.The 3rd respondent's cross-appeal dismissed with no order as to costs
- 4.Each party to bear its own costs of both the petition in the High Court and the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 328 of 2017
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Constitution read with Rule 32(5) of the Court of Appeal Rules, being an appeal from the High Court sitting as a constitutional court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 others [2017] KECA 342 (KLR)", Case Analysis (2017). Civil Appeal No. 258 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/342/eng@2017-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.