Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 138 of 2017· [2017] KECA 455 (KLR)

Hezron J. Opiyo Asudi & another v Peter Anyang? Nyong?O & 6 others [2017] KECA 455 (KLR)

Court of Appeal of Kenya
30 June 2017
3,267 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
This was a second appeal, on issues of law under section 41(2) of the Political Parties Act, from the High Court (Kimaru, J.) affirming the Political Parties Disputes Tribunal's dismissal of the appellants' complaint challenging ODM's direct nomination of Prof. Anyang' Nyong'o as its Kisumu gubernatorial candidate. Two issues fell for determination: the proper interpretation of section 40(1)(fa), inserted by the Political Parties (Amendment) Act of 2016 to cover 'disputes arising out of party primaries', and the appellants' locus standi. The appellants argued the amendment gave the PPDT direct jurisdiction over primary disputes without exhausting a party's internal dispute resolution mechanism (IDRM), invoking literal and purposive canons including the anti-redundancy presumption. The respondents countered that the legislature intended primary disputes to go first to the IDRM, citing Regulation 27(1) of the Elections (Party Primaries and Party Lists) Regulations, 2017, and urging that paragraph (fa) be read into section 40(2). The Court, guided by the memorandum of objects and reasons showing the amendment aimed to cure concurrent jurisdiction, held that primary disputes must first be placed before a party's IDRM, treating the omission of paragraph (fa) from section 40(2) as an inadvertent legislative oversight. On standing, the Court found the appellants were neither candidates nor parties to the National Appeals Tribunal complaint, had lodged no complaint themselves, and were engaged in surrogate litigation for Jack Ranguma. The appeal was dismissed in its entirety, with each party bearing its own costs.

Key legal issues

#
01

Interpretation of section 40(1)(fa) of the Political Parties Act and the exhaustion of internal party dispute resolution mechanisms

Holding

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.

Reasoning

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.

p. 6
02

Locus standi of the appellants before the PPDT

Holding

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.

Reasoning

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.

p. 6

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. 1.Appeal dismissed in its entirety
  2. 2.Each party to bear its own costs

Authorities

#

Legislation

  • Political Parties Actsection 40(1), 40(2), 40(1)(fa), 41(2), 9
  • Political Parties (Amendment) Act No. 21 of 2016section 19
  • Political Parties (Amendment) Act No. 12 of 2016section 19
  • Elections (Party Primaries and Party Lists) Regulations, 2017Regulation 27(1)
  • Elections Actsection 13(2A)
  • Constitution of Kenya, 2010Articles 4(2), 10, 22, 25, 27, 38, 50, 88(4)(e), 258
  • Second Schedule to the Political Parties Actregulation 23
  • ODM Election and Nominations Rules

Cases cited (6)

  • MUMO MATEMU v TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS
    [2013] eKLR
  • JUDGES AND MAGISTRATES VETTING BOARD AND ATTORNEY GENERAL v KENYA MAGISTRATES & JUDGES ASSOCIATION
    [2014] eKLR
  • BHARAT ALUMINIUM COMPANY v KAISER ALUMINIUM TECHNICAL SERVICE, INC
    Civil Appeal No. 7019/2005
  • NYUTU AGROVET LIMITED v AIRTEL NETWORKS LIMITED
    [2015] eKLR
  • HILL v WILLIAM HILL (PARK LANE) LTD
    [1949] AC 530 at page 546
  • JONNAH TUSASIRWE & 10 OTHERS v COUNCIL OF LEGAL EDUCATION & 3 OTHERS
    [2017] eKLR
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.