Aden Noor Ali v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 528 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that political parties, not the IEBC, decide party-list nominations, and upheld Jeniffer Shamalla's contested parliamentary seat.
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
#Jurisdiction of the Court of Appeal in election petition appeals
The Court has jurisdiction; the appeal raised matters of law, not fact, within section 85A of the Elections Act.
Jurisdiction is conferred by the Constitution and statute. Article 164(3)(a) donates mandate to hear appeals from the High Court and section 85A limits election appeals to matters of law. Applying the Munya criteria, complaints about interpretation and alleged violations of the Constitution and the Elections Act regarding party lists are matters of law within the Court's mandate.
Separation of roles between political parties and the IEBC in nominations
The political party exclusively chooses nominees and prepares the list; the IEBC only reviews the list for statutory compliance and cannot amend it or select candidates.
Article 90 and section 34 of the Elections Act require parties to submit party lists in order of priority, alternating between male and female candidates and reflecting regional and ethnic diversity. The IEBC reviews the list and issues a certificate of compliance or requires amendment. The choice of nominees is the party's sole prerogative, per Mwicigi and Lydia Mathia.
Definition of special interest categories
In the absence of legislation under Article 100, political parties are free to define their own special interest categories, including minorities mixed heritage (Asian African).
Article 97(1)(c) contemplates special interests including youth, persons with disabilities and workers, while Article 100 anticipates legislation on marginalized groups that has not been enacted. The absence of statutory definition leaves parties at liberty to specify categories within the confines of the law. Specifying mixed heritage (Asian African) was therefore lawful.
Amendment of a party list after submission to the IEBC
A party may amend and resubmit a party list where ordered by the PPDT to reconstitute it; the PPDT order did not require the 3rd respondent's exclusion if her special interest was specified.
The PPDT declared the original list null and void because the 3rd respondent's special interest was unspecified, and ordered the list reconstituted. The order did not direct that the reconstituted list exclude her. Reconstitution necessarily entailed amendment, and the reconstituted list was a new list open to complaints. The party was therefore entitled, indeed compelled, to adjust the list.
Ranking of special interest categories on party lists
Neither the Constitution nor electoral law prioritizes any special interest category over others; alternation between male and female nominees governs placement.
The election court held that prioritizing some categories over others would amount to discrimination, and this Court agreed, adding that Article 90(2)(b) mandatorily requires seats to be allocated alternately between male and female nominees. The 3rd respondent, being female and fourth, was properly placed; the male appellant could not take that position without rendering the list void.
Nature of the dispute before the High Court
The dispute was an election petition, not a constitutional petition or an appeal from the PPDT; the learned judge correctly determined it as such.
Following Mwicigi and IEBC v Cheperenge, any contest to an election by nomination is by election petition. The trial judgment shows the judge was sitting as an election court, not an appellate court; reference to the PPDT decision was only to address compliance with its orders. Weighty constitutional questions do not transform an election petition into a constitutional petition.
Costs in election petitions
Section 84 of the Elections Act makes an award of costs mandatory in election petitions, with costs following the cause; public-interest elements do not oust this requirement.
The dispute was an election petition, not a constitutional petition under Article 22. Although the court's discretion is circumscribed by Rule 30 of the Election Petition Rules and guided by fairness, justice and access to justice, the election court has no discretion whether to award costs, only as to quantum. The cap of Kshs.1,000,000 each was reasonable and not disturbed.
Legal principles established
#- The Court of Appeal's jurisdiction in election petition appeals is limited to matters of law, which include the interpretation or construction of provisions of the law and the application of the law to facts recorded by the election court.
- The choice of nominees in a party list is the sole prerogative of the political party; the IEBC's role is confined to reviewing the list for compliance with the law.
- Until legislation defining special interest categories is enacted under Article 100, political parties remain at liberty to identify and select their own categories of special interest groups for nomination.
- A challenge to an election through nomination to a special seat in the National Assembly is by way of election petition in the High Court, not an appeal from the PPDT or a constitutional petition.
- In election petitions, the election court must award costs and costs follow the cause; constitutional or public-interest elements do not displace section 84 of the Elections Act.
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 at Milimani
- Election Petition Appeal No. 11 of 2017
- Jurisdiction invoked
- Article 164(3)(a) of the Constitution and section 85A of the Elections Act
Relief refused
#Nullification of the 3rd respondent's nomination and gazettement as member of the National Assembly
The nomination was valid; the party list was properly reconstituted in compliance with the PPDT order and the IEBC and Jubilee Party complied with the law.
Declaration that the appellant was the bona fide Jubilee Party nominee for the marginalized/minority group in the fourth position
Article 90(2)(b) requires alternation between male and female nominees; the fourth position was for a female nominee and the appellant, being male, could not occupy it.
Order that each party bear its own costs on public-interest grounds
The suit was an election petition, not a constitutional petition; section 84 of the Elections Act mandates that costs follow the cause.
Costs
The appeal was dismissed with the appellant bearing the costs of the appeal; the election court's order for payment of the 1st and 3rd respondents' costs capped at Kshs.1,000,000 each was upheld.
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.
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.
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.
it is a mandatory requirement under Article 90 (2) (b) of the Constitution for seats to be allocated alternately between male and female nominees.
In all respects, when the judgment is analysed, it is clear that the learned judge was dealing with an election petition and not an appeal, and we find the appellant’s allegation in respect of this issue to be unfounded.
An election court shall award costs of and incidental to a petition and costs shall follow the cause.
Hence by virtue of the order the Jubilee Party was allowed to adjust the party list despite it having been submitted to the IEBC.
Issues in the judgment
#The judgment inconsistently dates the resubmission of the reconstituted party list as 17th August 2018 in one passage and 16th August 2017 elsewhere.
The judgment cites the Mwicigi case with two different years, [2016] eKLR in the respondent's submissions and [2015] eKLR in the court's own discussion.
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 528 (KLR)", Case Analysis (2018). Civil Appeal No. 12 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/528/eng@2018-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.