Aswim Faud Rudainy v Kazungu Wanje Baya & 2 others [2017] KECA 411 (KLR)

Court of Appeal of Kenya

21 July 2017

RNR. N. Nambuye

W. Ouko SKS. Gatembu Kairu

2,183 words in judgment

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The bottom line

Kenya's Court of Appeal ruled that political parties cannot enforce nomination tribunal decisions that have already been reversed, especially where votes were unfairly excluded.

What this practically means

Executive summary

These are reserved reasons (under Rule 32(5) of the Court of Appeal Rules) for a judgment delivered on 16th June 2017 dismissing the appellant's appeal against the High Court (Riechi, J), which had dismissed his challenge to the nomination of the 1st respondent as Jubilee Party candidate for Member of County Assembly, Shella Ward, Malindi. The parties had contested the 26th April 2017 party nomination; the 1st respondent won 740 votes to the appellant's 707. The Jubilee National Appeals Tribunal, in proceedings said to be ex parte, excluded the Malindi High School polling station votes, which would have made the appellant the nominee, but after the 1st respondent complained, the party issued the certificate to him. The PPDT declined to enforce the Tribunal's decision, holding the appellant had not furnished sufficient evidence of his win, and the High Court dismissed the appellant's appeal. Before the Court of Appeal, the appellant argued that the Tribunal's unchallenged decision could not be revisited and that only its enforcement was before the PPDT. The Court, exercising a mandate under Section 41(2) of the Political Parties Act confined to points of law, held that the PPDT could not enforce an award that had been overturned, that the question of the relocated polling station's votes was properly within the remit of the PPDT and High Court under Sections 40 and 41(2), and that voters were not disenfranchised given the proximity of other polling stations; excluding the votes would distort the electoral will, the correct remedy being a repeat poll. The High Court decision was affirmed and the appeal dismissed as devoid of merit. No costs order is recorded in the reasons.

Key legal issues

Whether the PPDT and the High Court erred in refusing to enforce the Jubilee National Appeals Tribunal decision of 9th May 2017

Holding

No error. Affidavit evidence showed the Tribunal's ex parte decision had been reversed after the 1st respondent appeared before it, so the PPDT could not enforce an overturned award.

Reasoning

The Tribunal's 9th May 2017 decision was made in the 1st respondent's absence; he appeared before the Tribunal on 10th May 2017 and the decision was reversed. The Deputy Executive Director of the 2nd respondent also swore that the decision 'was overturned'. An enforcement application cannot compel compliance with an award that no longer exists, so the PPDT and High Court were entitled to examine whether the award still stood rather than enforce it mechanically.

p. 4

Whether the question of votes cast at the relocated polling station was properly before the PPDT and High Court

Holding

Yes. Whether the Malindi High School votes should be included in the final tally was a matter within the remit of the PPDT and the High Court under Sections 40 and 41(2) of the Political Parties Act, and both correctly dealt with it.

Reasoning

The appellant's own complaint before the PPDT raised the relocation of Nidhamia Hall polling station and his loss by 33 votes, so the votes question was squarely raised. The Court endorsed the Judge's view that excluding the 245 votes would lock out voters who exercised their free will and distort the nomination, and that the proper remedy for disenfranchisement would have been a repeat poll, not exclusion of votes.

p. 4

Whether voters were disenfranchised by the relocation of the polling station

Holding

No. Nidhamia Hall was approximately 120 metres from Sir Ali Primary School polling station and approximately 300 metres from Uhuru Gardens polling station, and the full tally of five polling stations gave the 1st respondent a valid win with 740 votes against the appellant's 707.

Reasoning

On the affidavit evidence of proximity between polling stations, voters were not disenfranchised by the relocation. The total tally across the five polling stations produced a 33-vote win for the 1st respondent, so the Judge's conclusion that the appellant was validly nominated could not be faulted. The appeal was therefore devoid of merit.

p. 4

Legal principles established

A dispute tribunal or court on enforcement proceedings is not obliged to give effect to an award or tribunal decision that has been overturned; it may interrogate whether the decision still stands.
The inclusion or exclusion of votes cast at a polling station in a party nomination tally, and the question whether voters were disenfranchised by relocation of a polling station, fall within the remit of the PPDT and the High Court under Sections 40 and 41(2) of the Political Parties Act; excluding votes rather than ordering a repeat poll distorts the electoral process.
The Court of Appeal's appellate mandate under Section 41(2) of the Political Parties Act is confined to points of law.

Court orders

1.Appeal dismissed (as per the judgment delivered on 16th June 2017, with these reasons reserved under Rule 32(5) of the Court of Appeal Rules now furnished)

Authorities

Legislation

Political Parties ActSection 40
Political Parties ActSection 41(2)
Elections ActSection 13
Court of Appeal RulesRule 32(5)

Cases cited (2)

Florence Nyaboke Machani vs. Mogere Amosi Ombui & 2 others
[2014] eKLR
Mercy Kirito Mutegi vs. Beatrice Nkatha Nyaga & 2 others
[2013] eKLR

On appeal from: High Court of Kenya at Nairobi; Election Petition Appeal No. 69 of 2017
Jurisdiction invoked: Section 41(2) of the Political Parties Act (appeal to the Court of Appeal confined to points of law)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Aswim Faud Rudainy v Kazungu Wanje Baya & 2 others [2017] KECA 411 (KLR)", Case Analysis (2017). Civil Appeal No. 159 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/411/eng@2017-07-21

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