Samuel Kalii Kiminza v Jubilee Party & another [2017] KECA 392 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you must try your party's internal appeal first, but sloppy paperwork won't kill your case if the party ignores you.
What this practically means
#Executive summary
#Key legal issues
#Whether disputes arising out of party primaries under Section 40(1)(fa) are exempt from the exhaustion of internal dispute resolution mechanisms
No - the amendment introducing Section 40(1)(fa) did not create a new category of disputes exempt from Section 40(2); party primary disputes remain subject to IDRM.
The court adopted its recent decision in Lilian Gogo, applying purposive interpretation per the Supreme Court in Munya and Pepper v Hart. The memorandum of objects and reasons showed the amendment was meant to address concurrent jurisdiction, not to displace IDRM. Primary disputes are essentially disputes between a party and its members, already covered by paragraphs (a), (b), (c) and (e), all subject to Section 40(2). Section 13(2A) of the Elections Act buttresses this by obliging parties to hear intra-party nomination disputes.
Whether the appellant's non-compliance with the prescribed format and fees for the party Appeals Tribunal defeated the PPDT's jurisdiction
No - the appellant's document titled 'Appeal' contained all the ingredients of an appeal; Article 159(2)(d) cures format defects, and the party's failure to respond entitled him to approach the PPDT.
The court found the appeal document gave the position, facts, complaint and prayers, satisfying substance over form under Article 159(2)(d). Further, the appellant wrote twice to the party without any response despite being a paid-up member who had paid Kshs 250,000 nomination fees. The party ought at least to have advised him on the correct procedure; its silence meant he was entitled to go to the PPDT, vesting it with jurisdiction.
Validity of the direct nomination of the 2nd Respondent (cross-appeal)
Not determined; unnecessary given the PPDT's direction for fresh nominations, though the court observed the party should have given the appellant audience before direct nomination.
The court held that since it had affirmed the PPDT's jurisdiction and the PPDT had already directed fresh nominations, determining the direct nomination question would serve no purpose. It nonetheless noted obiter that a party which accepted a member's nomination fees and cleared him to vie should have given him audience before issuing a direct nomination certificate to a rival.
Legal principles established
#- Disputes arising out of party primaries under Section 40(1)(fa) of the Political Parties Act are subject to Section 40(2) and must first be taken through a party's internal dispute resolution mechanisms before the PPDT has jurisdiction
- Substantial compliance with internal appeal requirements satisfies the exhaustion requirement; procedural technicalities are cured by Article 159(2)(d) of the Constitution
- A political party that ignores a member's internal appeal and letters cannot rely on the member's procedural non-compliance to defeat the PPDT's jurisdiction; the member is entitled to approach the PPDT
Court orders
#- 1.Appeal allowed (judgment delivered 16th June 2017), with these reasons reserved under Rule 32(5) now rendered
- 2.Finding that disputes arising out of political party nominations are subject to internal party dispute resolution mechanisms pursuant to Section 40(2) of the Political Parties Act
- 3.Finding that the Appellant filed an appeal with the 1st Respondent's Appeals Tribunal notwithstanding non-compliance with the prescribed format
- 4.Finding that the PPDT had jurisdiction to hear and determine the matter
- 5.Cross-appeal not determined as unnecessary given the PPDT's direction for fresh nominations
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition Appeal No. 58 of 2017
- Jurisdiction invoked
- Section 41(2) of the Political Parties Act - second appeal restricted to points of law (appeal against decision of the Political Parties Disputes Tribunal as affirmed by the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kalii Kiminza v Jubilee Party & another [2017] KECA 392 (KLR)", Case Analysis (2017). Civil Appeal No. 157 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/392/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.