Aluoch Polo Aluochier v Attorney General [2018] KECA 583 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a public interest challenge to politicians holding party offices, ruling the proper enforcement channels had to be used first.
What this practically means
#Executive summary
#Key legal issues
#Requirement of a notice of appeal to challenge an interlocutory ruling
The Court declined to review the ruling of 3rd December 2012 striking out the 80 interested parties because no notice of appeal was filed against it; the appeal related only to the judgment of 21st January 2013.
The Court treated the notice of appeal as defining the scope of the appeal. Without a notice of appeal against the interlocutory ruling, the Court had no jurisdiction to revisit it, even though the appellant invited it to set the ruling aside. It relied on Nguruman Ltd v. Shompole Group Ranch & Another for this position.
Exhaustion of constitutionally prescribed enforcement mechanisms for Chapter Six violations
Article 75(2) prescribes that a State officer alleged to have violated Articles 76, 77 or 78(2) is subject to the applicable disciplinary procedure for the relevant office; the appellant could not bypass this and ask the court to directly find the officers guilty and remove or disqualify them.
The Court read Chapter Six as a whole: Articles 79 and 80 obliged Parliament to enact legislation establishing mechanisms for administering the Chapter, which Parliament did through the Ethics and Anti-Corruption Act and the Leadership and Integrity Act. The Constitution itself, in Article 75(2), prescribed the disciplinary route. A litigant must invoke constitutionally prescribed mechanisms unless he demonstrates they are inefficacious. The learned judge did not err in declining to usurp the disciplinary function.
Constitutionality of section 12(2) of the Political Parties Act
Section 12(2) is not unconstitutional because Article 77(2) prohibits only appointed State officers from holding office in political parties; elected State officers fall outside the prohibition and are the ones covered by section 12(2).
The Court construed Article 77(2) narrowly according to its text: the prohibition targets 'appointed' State officers. Section 12(2) of the Political Parties Act deals with elected State officers (President, Deputy President, MPs, Governors, Deputy Governors, members of County Assemblies), so there is no conflict with the constitutional provision and no basis for a declaration of unconstitutionality.
Mootness and academic disputes
The appeal was substantially academic because the 2013 elections the appellant sought to bar the interested parties from had already taken place, as had the 2017 elections, and courts should not make orders in vain or entertain abstract disputes.
The Court reiterated that courts should not be asked to make orders incapable of enforcement or to pursue academic or abstract disputes, citing Hitenkumar Amritlal v. City Council of Nairobi and Taytheon Aircraft Credit Corporation v. Air Alfaraj Ltd. Article 22's public interest enforcement provisions were not intended to burden courts with theoretical disputes. It also invoked Article 201(d) on prudent use of public money.
Exemplary damages for public interest litigation
Exemplary damages are awardable only where oppressive, arbitrary or unconstitutional action by servants of government is established or the defendant's action was calculated to procure a benefit at the plaintiff's expense; none of these was shown, and a public interest litigant cannot enrich himself at public expense.
Citing Obongo & Another v. Municipal Council of Kisumu and Bank of Baroda (Kenya) Ltd v. Timwood Products Ltd, the Court held the ingredients for exemplary damages were absent: liability of the interested parties was unestablished and the prescribed mechanism had not been invoked. The appellant assumed the burden of litigating voluntarily and could not claim payment for professional time or an award analogous to penalties under tax and anti-corruption statutes.
Multiplicity of declarations on the same issue
The High Court had already made the declaration sought in Abdullahman Ahmed Abdalla & Others v. Hon. Uhuru Kinyatta & Another, and the appellant had even obtained a similar declaration in a subsequent petition, prompting the Court's observation that there must be an end to litigation.
The Court noted that the appellant sought a declaration identical to one already granted by the High Court, and that without disclosure he had filed Constitutional Petition No. 360 of 2013 seeking the same declaration, which was granted in 2016. This reinforced the conclusion that the appeal was duplicative and had no merit.
Opportunity to be heard before drastic orders against struck-out parties
The drastic orders sought against the interested parties could not have issued without affording them a hearing, since they had been struck out of the petition and there was no appeal against that ruling.
Relying on Onyango Oloo v. Attorney General and Pashito Holdings Ltd & Another v. Paul Nderitu Ndun'gu & Others, the Court held that orders disqualifying persons from office or elections could not be made against parties who were not before the court and had had no opportunity to be heard - a natural justice constraint on the remedies the appellant sought.
Legal principles established
#- An appellate court will not entertain a challenge to a ruling against which no notice of appeal was filed.
- Where the Constitution or Parliament prescribes a mechanism for addressing a grievance, that mechanism must first be invoked unless it is shown to be inefficacious; in particular, a State officer alleged to have violated Article 77 is to be dealt with under the applicable disciplinary procedure per Article 75(2), and a court cannot itself find the officer guilty and remove or bar them.
- Article 77(2)'s prohibition on holding office in a political party applies only to appointed State officers, not elected State officers.
- Courts will not make orders in vain or entertain academic or abstract disputes, and a public interest litigant is not entitled to personal enrichment by way of damages.
Court orders
#- 1.The appeal stands dismissed in its entirety
- 2.No order as to costs (the Court indicated it would have awarded costs against the appellant had the respondent participated)
- On appeal from
- High Court
- Constitutional Petition No. 446 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in a constitutional petition (notice of appeal against judgment of 21st January 2013); no specific constitutional or statutory provision is cited in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Members of Parliament & County Governments of Mandera, Wajir and Garissa v Kenya National Bureau of Statistics & others[2020] KEHC 9902 (KLR)29 Jun 2020
- Alfred Sagero Omweri v Kennedy Omweri Ondieki [2020] KECA 896 (KLR)[2020] KECA 896 (KLR)31 Jan 2020
Cite this brief
#Cite this brief
Caselaw, "Aluoch Polo Aluochier v Attorney General [2018] KECA 583 (KLR)", Case Analysis (2018). Civil Appeal No 66 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/583/eng@2018-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.