Hezron J. Opiyo Asudi & another v Peter Anyang? Nyong?O & 6 others [2017] KECA 455 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that party primary disputes must go through a party's internal process before reaching the Political Parties Disputes Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of section 40(1)(fa) of the Political Parties Act and the exhaustion of internal party dispute resolution mechanisms
The amendment adding party primary disputes was intended to address concurrent jurisdiction, not to bypass IDRM; the legislature likely inadvertently omitted (fa) from section 40(2), and the Court read the requirement of exhaustion to cover party primary disputes.
The memorandum of objects and reasons showed the amendment was meant to address the challenge of concurrent jurisdiction with other bodies handling electoral disputes, including the IEBC under Article 88(4)(e). Allowing direct filing at the PPDT would create the very concurrency the amendment sought to avoid. Statutory scheme (section 9 PPA, regulation 23 Second Schedule, section 13(2A) Elections Act) requires IDRM first, unless a fair hearing cannot be obtained there.
Locus standi of the appellants before the PPDT
The appellants, not being candidates in the nomination exercise and not parties to the National Appeals Tribunal complaint, had no locus standi; their claim was surrogate litigation for Jack Ranguma.
The appellants did not participate in the Kisumu gubernatorial primaries, were not parties to NAT complaint No. 23 of 2017, and filed no complaint before the party's National Appeals Tribunal. Their pleading erroneously described the claimant as Governor of Kisumu, suggesting they acted at the instance of Jack Ranguma who had resigned to run as an independent candidate. Under the party's Election and Nominations Rules read with section 40 of the Act, they lacked capacity.
Legal principles established
#- All disputes arising out of party primaries must first be instituted before a party's internal dispute resolution mechanism before being placed before the PPDT; paragraph (fa) falls within the sieving mechanism of section 40(2).
- A person who was not a candidate in a party's nomination exercise and not a party to the internal appeals process has no locus standi to complain to the PPDT about the outcome of the nominations.
- An appeal to the Court of Appeal under the Political Parties Act lies on issues of law only.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Each party to bear its own costs
- On appeal from
- High Court of Kenya at Nairobi (Kimaru, J.)
- Election Petition Appeal No. 7 of 2017
- Jurisdiction invoked
- Section 41(2) of the Political Parties Act - second appeal on issues of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hezron J. Opiyo Asudi & another v Peter Anyang? Nyong?O & 6 others [2017] KECA 455 (KLR)", Case Analysis (2017). Civil Appeal No. 138 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/455/eng@2017-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.