Aden Noor Ali v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 3 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Aden Noor Ali's challenge, confirming political parties can freely define special interest categories for nominated seats.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the election petition appeal was properly before this Court
- 2.whether the 3rd respondent was validly nominated to the National Assembly by the Jubilee Party to represent special interests as the minority/marginalized group representative, and if so, whether the election court applied the provisions of the Constitution, the Elections Act and the regulations to the process of election of the 3rd respondent through nomination
- 3.whether the nature of the dispute in the High Court was a constitutional petition or an election petition
- 4.whether the dispute was determined as an appeal or an election petition
- 5.whether the court took into account extraneous matters
- 6.whether the court properly awarded costs
Key legal issues
#Whether the Court of Appeal had jurisdiction over the appeal under section 85A of the Elections Act limiting election appeals to matters of law
The Court had jurisdiction because the complaints concerned the interpretation and alleged violation of constitutional and statutory provisions governing party lists, which are matters of law.
Jurisdiction is conferred by the Constitution and statute. Article 164(3)(a) donates constitutional mandate to hear appeals from the High Court, and section 85A of the Elections Act governs election appeals. Applying the Munya framework from the Supreme Court, a matter of law includes interpretation or construction of legal provisions and the application of law to facts. The appellant's grounds were all about interpretation and alleged violations of the Constitution and the Elections Act.
Whether the 3rd respondent was validly nominated to represent the minority/marginalized special interest
The nomination was valid. The party's separate role of preparing the list and the IEBC's compliance-review role were both discharged, and the reconstituted list validly specified the 3rd respondent's category.
The nomination process carves out distinct roles: the political party chooses and submits a compliant party list, while the IEBC reviews it for compliance and may only require amendment or reject it. The Jubilee Party reconstituted its list as ordered by the PPDT, specifying the 3rd respondent's special interest as minority mixed heritage (Asian African), and the IEBC found it compliant and gazetted her. The PPDT order did not require her exclusion once the special interest was specified.
Whether political parties may define special interest categories absent defining legislation
Yes. Until Parliament enacts Article 100 legislation defining special interest categories, political parties are free to define and select the categories under which they nominate representatives.
Article 97(1)(c) and Article 100 contemplate special interests including youth, persons with disabilities, workers, minorities and marginalized communities, but no legislation defines the categories or criteria. The Court endorsed the election court's view that this leaves political parties to define categories within the confines of the law. Nothing prohibited the Jubilee Party from specifying minorities mixed heritage (Asian African) as a special interest category.
Whether the party list could be amended after submission to the IEBC
Yes, because the PPDT ordered reconstitution and resubmission, the Jubilee Party was compelled and entitled to adjust the list notwithstanding prior submission.
The PPDT ordered the party list to be reconstituted and the Jubilee Party could not have resubmitted it to the IEBC without adjusting it. By virtue of that order the party was allowed to amend the list after submission, and nothing estopped it from doing so to specify the 3rd respondent's category. Once the reconstituted compliant list was submitted it became a new list open to complaints by aggrieved parties.
Whether the election court determined an election petition or an appeal from the PPDT, and took account of extraneous matters
The election court properly determined an election petition, did not take extraneous matters into account, and did not adjudicate an appeal from the PPDT.
Following Mwicigi and Cheperenge, any contest to an election, including election by nomination, is by way of election petition; here it was properly filed in the High Court under Rule 6(1)(a) of the Election Petition Rules 2017. The judgment shows the judge sat as an election court; the PPDT decision was referenced only on compliance with its orders. The ODM list was used only comparatively, and the party's pleadings were expressly not adopted in evidence.
Whether costs were properly awarded despite public-interest constitutional questions
Costs were properly awarded. The suit was an election petition, so section 84 mandatorily required costs to follow the cause, and the capping at Kshs.1,000,000 each was reasonable.
Although weighty constitutional questions and public interest elements existed, that did not transform the election petition into a constitutional petition or preclude the mandatory costs regime. Section 84 provides costs shall follow the cause, and per Karua the election court's discretion is confined to fairness and quantum. The capped award of Kshs.1,000,000 each to the IEBC and the 3rd respondent was reasonable and the Court declined to interfere.
Legal principles established
#- The choice of nominees in a party list is the sole prerogative of the political party; the IEBC's role is limited to reviewing the list for legal compliance and it has no power to amend it or select candidates.
- Until Parliament enacts legislation under Article 100 defining special interest categories and nomination criteria, political parties remain at liberty to identify and select their own special interest categories for nomination.
- Neither the Constitution nor the electoral statutes prioritise any category of special interest over others in the ranking of party lists; lists must simply alternate between male and female candidates in order of priority.
- A dispute over a nomination to a special seat in the National Assembly is challengeable only by way of election petition in the High Court, not as an appeal from the PPDT or as a constitutional petition.
- An election court has no discretion whether to award costs in an election petition; costs must follow the cause under section 84 of the Elections Act, with discretion lying only as to quantum.
Court orders
#- 1.This appeal has no merit and is hereby dismissed.
- 2.The order by the election court for payment of the 1st and 3rd respondents costs capped at Ksh.1,000,000/= each be and is hereby upheld.
- 3.The appellant shall bear the costs of this appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Milimani (sitting as an election court)
- Election Petition Appeal No. 11 of 2017
- Jurisdiction invoked
- Article 164(3)(a) of the Constitution and Section 85A of the Elections Act (appeals from the High Court sitting as an election court, limited to matters of law)
Relief refused
#Nullification of the 3rd respondent's nomination and gazettement as Member of the National Assembly
The nomination complied with the constitutional and statutory nomination process; the reconstituted party list validly specified the 3rd respondent's special interest as minority mixed heritage (Asian African)
Declaration that the appellant was the bona fide Jubilee Party nominee for the marginalized/minority group in position four
Position four was required to be occupied by a female nominee under the gender alternation rule in Article 90(2)(b); the appellant, being male, could not take it, and no law created a hierarchy of special interest categories
Order that each party bear its own costs on public-interest grounds
The dispute was an election petition, not a constitutional petition, and section 84 of the Elections Act mandatorily requires costs to follow the cause
Costs
The election court's order for payment of the 1st and 3rd respondents' costs capped at Ksh.1,000,000/= each was upheld, and the appellant shall bear the costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Nowhere does the law grant powers to the IEBC to adjudicate upon the nomination processes of a political party: such a role has been left entirely to the political parties. The IEBC only ensures that the party list, as tendered, complies with the relevant laws and regulations
political parties will remain at liberty to identify and select categories of special interest groups under which to nominate their representatives at will.
To my understanding neither the Constitution, nor the Election Act and the relevant Regulations provide for the prioritizing of the names in the party lists
Hence by virtue of the order the Jubilee Party was allowed to adjust the party list despite it having been submitted to the IEBC.
any contest to an election, whatever its manifestation, is to be by way of 'election petition'.
the election court has no discretion but to make an order for costs in election petitions. Perhaps the only discretion available lies in the quantum of the award.
1. This appeal has no merit and is hereby dismissed. 2. The order by the election court for payment of the 1st and 3rd respondents costs capped at Ksh.1,000,000/= each be and is hereby upheld. 3. The appellant shall bear the costs of this appeal.
Issues in the judgment
#The Supreme Court decision in Moses Mwicigi is cited with two different years within the same judgment: "[2016] eKLR" in the respondents' submissions and "[2015] eKLR" in the Court's own discussion.
The judgment states the reconstituted party list was resubmitted "on or about 17th August 2018" earlier, but later refers to the reconstituted list being submitted on 16th August 2017, an apparent misdated year.
The judgment at one point refers to "the gazettement of the 3rd appellant" where the 3rd respondent is evidently meant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aden Noor Ali v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 3 (KLR)", Case Analysis (2018). Civil Appeal No. 12 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/3/eng@2018-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.