Orange Democratic Movement v Mohamed & 5 others (Civil Appeal 37 of 2018) [2018] KECA 292 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that disputes over gazetted county assembly nominations must go to a magistrate's election court, not the High Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Does the High Court have original jurisdiction by way of a constitutional petition to hear and determine election and nomination disputes in relation to Membership to County Assembly when the claim involves alleged violation of minority rights or protection and enforcement of rights of marginalized groups?
- 2.Whether the preliminary objections met the requisite threshold of being pure points of law
- 3.Whether there is a specific constitutional or statutory bar to the High Court entertaining a constitutional petition on settlement of electoral disputes relating to Membership to a County Assembly
- 4.Whether the threshold for a constitutional petition was met in the petitions filed at the High Court
Key legal issues
#Whether the High Court has original jurisdiction, by way of constitutional petition, to determine post-gazettment nomination disputes for County Assembly membership
It does not. There is an express statutory bar under Section 75(1A) of the Elections Act; such disputes vest in the Magistrates Court as election court, with the High Court having only appellate jurisdiction under Section 75(4).
The court, bound by the Supreme Court's decision in Moses Mwicigi, held that gazettment marks the completion of the nomination as an 'election', shifting any consequential dispute to the Election Courts. The prayers sought by the respondents, including de-gazettement and nullification of nomination, were relief available only in an election petition. Allowing such claims to proceed as constitutional petitions would open a parallel electoral dispute-resolution regime and defeat the sui generis character of electoral dispute resolution.
Whether minority-rights and marginalisation claims can be litigated in the High Court notwithstanding an electoral dispute before an election court
No. Whatever ground is raised in an election petition properly before the Magistrates Court, including Bill of Rights grounds, the election court has jurisdiction to determine it.
The court reasoned that an election court is a court of specialized jurisdiction and, sitting as such, a magistrate can hear all grounds raised in a properly filed election petition, including allegations of violation of minority and marginalized-group rights. There is no rule excluding Bill of Rights grounds from election petitions, so the respondents' rights grievances were properly ventilable before the Magistrates Court.
Whether the trial judge erred in deferring the jurisdictional question to the full hearing
Yes. The judge's statement that jurisdiction could be determined after clarifying disputed facts was erroneous; jurisdiction is a preliminary issue to be determined upfront.
The court held that whenever jurisdictional competence is disputed, the question must be resolved at the outset; a court cannot make one more step where it lacks jurisdiction, citing Owners of the Motor Vessel 'Lilian S'. Deferring jurisdiction until facts are clarified misconceives the nature of preliminary objections on jurisdictional competence.
Legal principles established
#- Post-gazettment nomination and election disputes for County Assembly membership, even where couched as constitutional petitions alleging minority-rights violations, must be brought by way of election petition before the Resident Magistrate's Court designated by the Chief Justice; the High Court's Article 165 jurisdiction is statutorily barred.
- Jurisdiction cannot be conferred on a court by pleading; it is the substance of the claim and the relief sought that determine jurisdictional competence.
- A question of jurisdiction must be determined upfront as a preliminary issue, not after a full hearing of the merits.
- A magistrate's court sitting as an election court has jurisdiction to hear and determine any and all grounds raised in an election petition properly before it, including alleged violations of the Bill of Rights.
- Upon gazettment, nominated members of a County Assembly are deemed elected members, and any contest to such election, whatever its manifestation, is to be by way of election petition.
Court orders
#- 1.The appeal is allowed
- 2.The Ruling of the High Court dated 4th April 2018 and all consequential orders are set aside
- 3.All the preliminary objections filed before the High Court are upheld
- 4.It is declared that the High Court lacks jurisdiction to entertain, hear and determine Constitution Petition Nos. 2 and 3 of 2017 filed at the Lodwar High Court
- 5.Each party is to bear his/her/its costs in this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Lodwar
- Constitutional Petition Nos. 2 and 3 of 2017
- Jurisdiction invoked
- Section 75(1A) of the Elections Act; appellate jurisdiction over the High Court under the Constitution
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.
There is an express statutory bar to the original jurisdiction of the High Court to handle post-gazettment nomination or electoral disputes relating to Membership to the County Assembly. The original jurisdiction to hear and determine post-gazettment electoral disputes relating to membership to a County Assembly is vested upon the Magistrates Court.
Jurisdiction is conferred by law not through pleading and legal craftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court.
a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court.
the High Court sitting qua High Court with its original and unlimited jurisdiction under Article 165 (3) of the Constitution is not an election court envisaged under Article 87 (1) of the Constitution.
This appeal has merit and is hereby allowed. We set aside the Ruling of the High Court dated 4 th April 2018 and all consequential orders. All the preliminary objections filed before the High Court be and are hereby upheld.
It is hereby declared that the High Court lacks jurisdiction to entertain, hear and determine Constitution Petition Nos. 2 and 3 of 2017 filed at the Lodwar High Court. Each party is to bear his//her/its costs in this appeal.
Issues in the judgment
#The judgment inconsistently describes the respondents as 'appellants' in places (e.g. 'The 1st appellant, Yusuf Ali Mohamed' and 'the 2nd appellant, John Osing Ayapan') although the coram shows ODM is the sole appellant and Yusuf Ali Mohamed and John Osing Ayapan are 1st and 2nd respondents.
The judgment refers inconsistently to the nominated members as Members of the 'Lodwar County Assembly' and the 'Turkana County Assembly' in the parties' pleadings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orange Democratic Movement v Mohamed & 5 others (Civil Appeal 37 of 2018) [2018] KECA 292 (KLR)", Case Analysis (2018). Civil Appeal No. 37 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/292/eng@2018-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.