Alex Ouda Otieno v Orange Democratic Movement Kenya & 1 other
The bottom line
#Kenya's Court of Appeal dismissed an appeal against ODM's Lang'ata nomination, confirming that 'new evidence' on review must be genuinely new, not available earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged new evidence (identity of the Returning Officer) met the Order 45 Rule 1 threshold for review
The evidence was not new; it was available at the time of the original PPDT determination, and no due diligence was shown. PPDT erred in allowing the review.
The appellant had already contended before PPDT in the initial hearing that Jeremiah had been removed and replaced by James E. Okoth, and that contention was rejected. The three new affidavits merely reiterated the appellant's earlier position without substantiating the alleged revocation. The PPDT ruling did not reveal any due diligence undertaken. The Court of Appeal concurred with the High Court judge that PPDT did not properly exercise its discretion in allowing the review.
Scope of the High Court's appellate mandate over a PPDT review decision
The High Court judge, hearing an appeal under section 41(2) of the Political Parties Act, was confined to evaluating the new evidence introduced on review and whether PPDT properly exercised its discretion, and could not be faulted for failing to re-evaluate all the original evidence.
Because the decision under appeal was on a review application, the review was not an appeal and was restricted to the new issues. The judge's task was to determine whether the alleged new evidence satisfied Order 45 Rule 1 and whether the PPDT discretion was properly exercised. Failing to re-evaluate all the evidence adduced before the PPDT was therefore not an error.
Legal principles established
#- Discovery of new and important matter or evidence as a ground for review relates to issues of fact, not law, and must be evidence that could not with due diligence have been obtained before the original decision.
- On an appeal against a review decision, the appellate judge's mandate extends only to evaluating whether the new evidence introduced in the review met the threshold of Order 45 Rule 1 and whether the tribunal properly exercised its discretion; the judge need not re-evaluate all the evidence originally adduced.
- A review application is not a second bite of the cherry; the tribunal's mandate is restricted to considering the matters posited as new evidence.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya, Nairobi
- Election Petition Appeal No. 96 of 2017
- Jurisdiction invoked
- Section 41(2) of the Political Parties Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mary Wangari Karenju v Francis Muiruri Kinyanjui [2019] KEELC 2159 (KLR)[2019] KEELC 2159 (KLR)23 Jul 2019
Cite this brief
#Cite this brief
Caselaw, "Alex Ouda Otieno v Orange Democratic Movement Kenya & 1 other", Case Analysis (2017). Civil Appeal No. 194 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/423/eng@2017-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.