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Court of AppealPartially AllowedCivil Appeal No. 172 of 2017· [2017] KECA 449 (KLR)

Yasir Noor Mohammed Noor v Jubilee Party of Kenya & another [2017] KECA 449 (KLR)

Court of Appeal
30 June 2017
RNR. N. NambuyeSKS. Gatembu KairuAMA. K. Murgor
1,247 words in judgment
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The bottom line

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Kenya's Court of Appeal cancelled Jubilee Party's Nyali Constituency nomination result, finding irregularities like non-members voting, and ordered fresh nominations within 48 hours.

What this practically means

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Executive summary

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This appeal arose from the Jubilee Party primaries of 26th April 2017 for the Nyali Constituency National Assembly seat. The appellant, Yasir Noor Mohammed Noor, complained to the Political Parties Dispute Tribunal that the party had allowed non-members to vote and failed to conduct nominations at Tumaini Church and Fadhili Adhim Primary School polling stations, contrary to Article 38 of the Constitution, section 13 of the Elections Act and rule 13 of the Elections (General) Regulations. The PPDT found irregularities, nullified the nomination certificate and ordered fresh nominations. The 2nd respondent, the declared winner, successfully appealed to the High Court (Wakiaga, J.), which set aside the PPDT's judgment, holding the irregularities did not substantially affect the outcome, with each party bearing its own costs. The appellant then appealed to the Court of Appeal, contending the High Court failed to evaluate the facts against Articles 38 and 81(a) and (e) of the Constitution and misapplied sections 13 and 83 of the Elections Act. Sitting as a full bench of Nambuye, Gatembu Kairu and Murgor, JJ.A, and invoking rule 32(5) of the Court of Appeal Rules given the proximity of the 8th August 2017 general election, the Court rendered its decision immediately while reserving its reasons for 28th July 2017. It found the appeal merited, allowed it, set aside the High Court's judgment of 29th May 2017, and ordered the party to conduct fresh nominations for Nyali Constituency within 48 hours of 4.00 p.m on 30th June 2017, with each party bearing its own costs. This ruling binds the High Court in party nomination disputes of this nature.

Key legal issues

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01

Whether the nomination exercise was free and fair under Article 38 of the Constitution and section 13 of the Elections Act

Holding

The Court found the appeal merited, holding that the High Court erred in setting aside the PPDT's decision which had found election irregularities in the nomination exercise; fresh nominations were ordered.

Reasoning

The PPDT had found election irregularities in the nomination exercise, including the admission of non-party members to vote and failure to conduct nominations at two polling stations, and ordered fresh nominations and nullified the nomination certificate. The High Court set that decision aside, finding the irregularities did not substantially affect the outcome. The Court of Appeal, applying Articles 38 and 81(a) and (e) of the Constitution and section 13 of the Elections Act, concluded the High Court misapprehended the effect of the irregularities and restored the direction for fresh nominations.

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02

The Court's power to render a decision and reserve reasons

Holding

Under rule 32(5) of the Court of Appeal Rules, the Court may give its decision at the close of the hearing and deposit its reasons within ninety days.

Reasoning

Because the appeal concerned a time-sensitive nomination for the 8th August 2017 election, the Court invoked rule 32(5) to render its decision immediately, directing fresh nominations within 48 hours, while reserving its full reasons for delivery on 28th July 2017.

p. 3

Legal principles established

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  • Where a political party's nomination exercise breaches its nomination rules and constitutional guarantees of a free and fair nomination, the appellate court may set aside the High Court's vindication of the exercise and order fresh nominations.
  • Under rule 32(5) of the Court of Appeal Rules, the Court may give its decision at the close of a hearing and reserve its reasons for delivery within ninety days.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the High Court of 29th May 2017 is set aside
  3. 3.The 1st respondent is ordered to conduct fresh nominations for the Member of the National Assembly for Nyali Constituency within the next forty eight (48) hours from 4.00 p.m on 30th June 2017
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Article 81(a) and (e)
  • Constitution of Kenya, 2010Article 83
  • Elections Actsection 13(1)
  • Elections Actsection 83
  • Elections (General) Regulationsrule 13
  • Court of Appeal Rulesrule 32(5)
On appeal from
High Court at Nairobi
Election Petition Appeal No. 65 of 2017
Jurisdiction invoked
Appeal from the High Court in a political party nomination dispute, under the Court's appellate jurisdiction and rule 32(5) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Yasir Noor Mohammed Noor v Jubilee Party of Kenya & another [2017] KECA 449 (KLR)", Case Analysis (2017). Civil Appeal No. 172 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/449/eng@2017-06-30

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