Kennedy Moki v Rachel Kaki Nyamai & 2 others [2018] KECA 553 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed election courts can hear nomination disputes, but the MP kept her Kitui South seat and the losing candidate must pay higher costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the trial court err in law in finding that the court had no jurisdiction to hear and determine the pre-election nomination dispute?
- 2.Did the trial court err in exercising its discretion to cap costs at Ksh. 1,000,000/=?
Key legal issues
#Jurisdiction of an election court over pre-election nomination disputes
The Court held, after reviewing conflicting authorities, that an election court does have jurisdiction over pre-election nomination disputes where the dispute goes to eligibility and qualification to vie, but Article 88(4)(e) and Section 74(1) confer primary jurisdiction on the IEBC and PPDT whose mechanisms must first be exhausted; in this case the certificate's validity was never challenged and the issuing party was never joined, so the trial court's dismissal was affirmed.
The Court reviewed the dichotomy in case law: authorities pre- and post-2010 both ways. It adopted the principle that election is a process including nomination, and that a nomination certificate going to eligibility is an issue of substance challengeable in an election petition. However, the exhaustion principle and the finality of concluded constitutional processes (following Mary Wambui, Bichage and Mable Muruli) meant the appellant could not relitigate the nomination, especially where the conduct and results of the election itself were unchallenged.
Whether the trial court erred in capping costs at Ksh. 1,000,000/=
Partially: the cap for the 1st Respondent was on the lower side and was raised to Ksh. 2,500,000/= on cross-appeal; the cap for the 2nd and 3rd Respondents was upheld because they filed no cross-appeal.
Applying the Mbogo v Shah discretion standard, the Court surveyed comparative capping decisions in 2013 and 2017 election petitions, including Esposito Franco v Amason Kingi and Martha Wangari Karua, and concluded that Ksh. 1,000,000/= for the 1st Respondent was low. The 2nd and 3rd Respondents' failure to file a cross-appeal left the trial court's cap against them unassailable.
Legal principles established
#- An election court has jurisdiction to hear and determine a pre-election nomination dispute where the dispute goes to the eligibility and qualification of a candidate to vie, subject to finality and constitutional timelines of other competent organs.
- Article 88(4)(e) of the Constitution and Section 74(1) of the Elections Act do not oust the jurisdiction of an election court over nomination disputes that go to the root of the election.
- Where the validity of a nomination certificate was never challenged before the party, the PPDT, the High Court or any other competent forum, and the certificate-issuing party was never joined, a party cannot raise the validity of the certificate for the first time on appeal in an election petition context.
- Concluded constitutional processes in electoral matters cannot be reopened; parties cannot reopen concluded causes of action.
- A respondent who does not file a cross-appeal on costs cannot have the trial court's capping of its costs disturbed despite oral submissions.
Court orders
#- 1.The appeal is dismissed
- 2.The Cross-Appeal on costs has merit; the High Court order on costs for the 1st Respondent is set aside and the Appellant shall pay the 1st Respondent's High Court costs capped at Ksh. 2,500,000/=
- 3.The 2nd and 3rd Respondents' costs capped at Ksh. 1,000,000/= by the trial court are upheld
- 4.Save as to costs, the High Court judgment in Kitui Election Petition No. 2 of 2017 is affirmed and upheld
- 5.The Appellant shall bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kitui
- Kitui Election Petition No. 2 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals to the Court of Appeal in election petitions on matters of law)
Relief refused
#Nullification of the 1st Respondent's election on the basis that Jubilee Party did not conduct fresh nominations as ordered by the Court of Appeal
Whether fresh nominations were conducted is a question of fact outside the appellate jurisdiction, the nomination certificate was never challenged in any competent forum, and the declared results were not contested
Enhancement of costs to Ksh. 10,000,000/= as sought by the 1st Respondent
Comparative capping of costs in constituency election petitions supported a lower figure; the court instead capped at Ksh. 2,500,000/=
Costs
Appellant to pay 1st Respondent's High Court costs capped at Ksh. 2,500,000/=; 2nd and 3rd Respondents' costs capped at Ksh. 1,000,000/= upheld; Appellant to bear costs of the 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.
subject to finality and constitutional time lines of the jurisdiction of other competent organs, an election court has jurisdiction to hear and determine pre-election nomination disputes if such dispute goes to eligibility and qualification to vie and contest in an election
A nomination dispute that goes to the root of the electoral process, or one that determines qualification and eligibility of a candidate to vie, is an issue of substance that goes to the root of the election, and an election court has jurisdiction to hear and determine the dispute.
Taking cue and guided by the Supreme Court dicta, it is our position that in electoral disputes, parties cannot reopen concluded causes of action.
1. This appeal has no merit and is hereby dismissed. 2. The Cross-Appeal has merit. The High Court order on costs for the 1 st Respondent be and is hereby set aside. It is hereby ordered that the Appellant shall pay costs to the 1st Respondent in the High Court capped at Ksh. 2,500,000/=.
Issues in the judgment
#The judgment at paragraph 58 cites 'Section 74 (1) of the Constitution' though Section 74 is of the Elections Act
The trial court's judgment is quoted as ordering issuance of a certificate under 'Section 86 of the Elections Act', a provision not otherwise engaged in this judgment
The declared results table is internally inconsistent with the narrative: Rachel Kaki Nyamai is listed with 22,753 votes and Kennedy Moki with 16,217, but the numbering of candidates against vote tallies appears misaligned (candidate 2 is listed with 12,837)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Annie Wanjiku Kibeh v Clement Kungu Waibara another [2018] KECA 418 (KLR)[2018] KECA 418 (KLR)31 Jul 2018followed
Cite this brief
#Cite this brief
Caselaw, "Kennedy Moki v Rachel Kaki Nyamai & 2 others [2018] KECA 553 (KLR)", Case Analysis (2018). Election Petition Appeal No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/553/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.