Wanjiku Muhia v Faith Wairimu Gitau & another [2017] KECA 408 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed party dispute tribunals can declare nomination winners, but here burning ballot papers meant the flawed nomination should simply be redone.
What this practically means
#Executive summary
#Key legal issues
#Whether the PPDT has jurisdiction to declare a winner of a party nomination
Section 40 defines the categories of disputes but not remedies; the PPDT is not deprived of the power to grant appropriate remedies and may, in appropriate cases such as where a recount makes the winner apparent, direct the party to issue a nomination certificate. However, on the material before it, the PPDT could not determine the winner here; it should have ordered a repeat nomination.
The court contrasted the express powers of an election court under Section 80 of the Elections Act with the PPDT's silence on remedies, holding silence does not mean the tribunal lacks remedial power. The party's own nomination rules (Rule 37.4) expressly clothe its internal appeal tribunal with power to make a conclusive determination of a winner, and the PPDT can exercise similar powers in appropriate cases. But here the PPDT itself found the process flawed and the result affected, making a declaration of the appellant as winner untenable.
Whether the burning of ballot papers four days after the nomination, while a dispute was pending, was properly found to amount to suppression of evidence
The PPDT was right; the allegation of burning was not rebutted, and the party's own nomination rules required retention of all nomination documents for not less than six months, entitling the tribunal to draw a sinister inference. The High Court erred in disturbing that finding.
The ballot papers were burnt on 30th April 2017, four days after the nomination, by which time the appellant had already lodged a complaint alleging photocopied ballots that could only be verified by scrutiny of the papers. Although resource constraints were proffered, the Jubilee Party Nomination Rules 2016 (Part XV) required documents to be preserved for at least six months. Had the Judge's attention been drawn to the rules, she would have reached a different conclusion on the PPDT's inference.
Scope of the Court of Appeal's jurisdiction under Section 41(2) of the Political Parties Act
The Court's jurisdiction on appeal from the High Court is confined to points of law.
Section 41(2) provides that an appeal lies from the PPDT to the High Court on points of law and facts, and on points of law to the Court of Appeal and the Supreme Court. The appeal therefore turned on whether the Judge misdirected herself in law on the PPDT's jurisdiction and on her treatment of the unrebuted burning-of-ballots finding.
Legal principles established
#- Section 40 of the Political Parties Act defines the categories of disputes over which the PPDT has jurisdiction, but the Act's silence on remedies does not deprive the PPDT of power to grant appropriate remedies, including, in appropriate cases, declaring a winner.
- Where a nomination process is found flawed but the winner cannot be determined from the material before it, the PPDT's proper remedy is an order for a repeat of the nomination, not a declaration of a winner.
- Destruction of nomination records contrary to nomination rules requiring retention for not less than six months, done days after a nomination while a dispute is pending, supports a sinister inference of suppression of evidence.
Court orders
#- 1.The appellant's appeal allowed in terms of the judgment of the Court delivered on 8th June 2017, setting aside the High Court's reversal of the PPDT's finding that the burning of ballot papers was not rebutted
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 25 of 2017
- Jurisdiction invoked
- Section 41(2) of the Political Parties Act - appeal to the Court of Appeal on points of law from the High Court on appeal from the Political Parties Disputes Tribunal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjiku Muhia v Faith Wairimu Gitau & another [2017] KECA 408 (KLR)", Case Analysis (2017). Civil Appeal No. 143 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/408/eng@2017-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.