Phylip O. Mwabe v Orange Democratic Movement & another [2017] KECA 405 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an aspiring MP's challenge to ODM's nomination, confirming courts won't reverse discretionary decisions without clear error.
What this practically means
#Executive summary
#Key legal issues
#Whether ODM was functus officio at the time of the High Court's orders of 18th May, 2017
ODM was not functus officio; the alleged nomination certificate of 6th May, 2017 was never substantiated and no such certificate existed
The court reasoned that had the alleged 6th May 2017 certificate actually existed, the appellant would have exhibited it at the earliest opportunity before the PPDT and the High Court. The reasonable inference from his failure was that no such certificate existed. Consequently ODM had not exhausted its nominating mandate when it complied with the High Court's orders, and the issue of functus officio did not arise.
Whether mistakes of counsel should excuse the failure to place the alleged certificate before the court
No mistake of counsel was demonstrated capable of being visited on the client, because the certificate's very existence was unsubstantiated; the defect was one of substance, not procedure
The court accepted the general principle that mistakes of counsel should not be visited on a litigant, but found that no such mistake attached to the discounting of the further replying affidavit, since the certificate it sought to introduce was found never to have been originated by ODM. The attack was therefore on substance, and Article 159(2)(d) could not breathe life into it.
Whether ODM approbated and reprobated and/or violated the appellant's legitimate expectation
No; ODM's action of 19th May, 2017 was in tandem with the concurrent directions of the NAT, PPDT and the High Court, and no legitimate expectation was founded on substantiated facts
The court found ODM's issuance of the certificate to the 2nd respondent was consistent with the directions of its NAT and the PPDT as affirmed by the High Court, and not contrary to ODM's own Constitution and Nomination Rules. The alleged legitimate expectation rested on the unsubstantiated claim that ODM had issued a certificate to the appellant on 6th May, 2017.
Standard for interference with a discretionary decision on review
A discretionary decision is disturbed only on the established parameters: misdirection in law or fact, taking into account or failing to take into account relevant considerations, or a plainly wrong decision
The court adopted the settled parameters from Mbogo v Shah and United India Insurance Co. Ltd v East Africa Underwriters, holding that a first appeal from the exercise of judicial discretion requires the appellate court to be satisfied that the judge misdirected himself and arrived at a wrong decision, or that the decision is plainly wrong, before interfering.
Legal principles established
#- An appellate court will not interfere with a discretionary decision of a judge unless the judge misdirected himself in some matter and as a result arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and there has been misjustice.
- The ground of 'any other sufficient reason' for review need not be analogous with the other grounds set out in Order 45, because section 80 of the Civil Procedure Act confers an unfettered right to apply for review.
- Article 159(2)(d) of the Constitution cannot be invoked to cure a defect that is one of substance, not of procedural technicality.
Court orders
#- 1.Dismissal of the appellant's appeal in terms of the judgment of the Court delivered on the 6th day of June, 2017
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 19 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in an election-related dispute (appeal from the judgment and order of the High Court of Kenya at Nairobi (Onyiego, J) dated 25th May, 2017; reasons given pursuant to Rule 32(5) of the Court of Appeal Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phylip O. Mwabe v Orange Democratic Movement & another [2017] KECA 405 (KLR)", Case Analysis (2017). Civil Appeal No. 150 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/405/eng@2017-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.