Dida v Debate Media Ltd & another (Civil Appeal 238 of 2017) [2018] KECA 642 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that debate rules treating presidential candidates differently are not discrimination if they serve a legitimate purpose, and public-interest petitioners may avoid paying costs.
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 petition disclosed a constitutional violation under Article 27 of the Constitution
- 2.Whether the learned judge rightly concluded that the burden of proof lay with the appellant
- 3.Whether the appellant was discriminated against
- 4.Whether the learned judge relied on hearsay evidence
- 5.Preliminary question: whether the appellant's prayers were rendered otiose since the debates and presidential election had already been held
Key legal issues
#Whether the petition disclosed a constitutional violation under Article 27
The petition disclosed a violation claim: the complaint that the guidelines treated him as a second-class candidate amounted to a claim of discrimination on an unclassified ground under Article 27
Applying the Anarita Karimi Njeru principle and the Trusted Society test, the court held that although the petition cited many constitutional provisions without particulars, it specifically alleged that the guidelines discriminated against the appellant by treating him as a second-class presidential candidate. That identified the right infringed and the particulars, so the petition was properly before the High Court and the cross-appeal failed.
Burden of proof in discrimination claims
The burden lay on the appellant to prove, on a balance of probabilities, that the guidelines violated Article 27; it shifts only once a case is made out
Relying on Catholic Commission for Justice and Peace in Zimbabwe v Attorney General, the court affirmed that he who alleges breach of a fundamental right bears the burden of proving it. Where discrimination is alleged on an arbitrary or unclassified ground, the complainant must prove the conduct is not rational, amounts to discrimination and that the discrimination is unfair. The judge rightly so held.
Whether the debate guidelines discriminated against the appellant
No discrimination: the categorization served a legitimate purpose and the appellant failed to demonstrate unfair treatment on an unclassified ground
Applying the three-stage enquiry from Harksen v Lane, the court found the categorization of candidates by opinion poll support was rationally connected to the legitimate purpose of conducting orderly, meaningful debates. At the second stage, the appellant, whose claim rested on an unclassified ground, led no evidence connecting the debating categories to a reduction in his status, so unfair discrimination was not established and his rights were not violated.
Costs in constitutional litigation of public interest
Although costs follow the event, the High Court erred by not considering the public interest element of the petition; the costs order was set aside
The court acknowledged the judge's discretion on costs under section 27(1) of the Civil Procedure Act, which appellate courts ordinarily will not disturb. However, the judge failed to take into account the public interest element: the appellant was a presidential aspirant and the debates were for the benefit of the public. The costs order was therefore set aside and each party ordered to bear its own costs both here and below.
Mootness of the prayers given the concluded debates
The court retained jurisdiction to determine the constitutional question despite the debates and election having concluded
Though the parties conceded the debates and presidential election had taken place, the court held that since the guidelines had come into existence and were imputed to have violated the appellant's rights, a live question remained which ought to be determined for the appellant's sake and for posterity. The appeal was therefore determined on the merits rather than struck out as moot.
Legal principles established
#- A constitutional petition alleging violation of a fundamental right satisfies the pleading threshold if it specifies the right infringed and the particulars of the infringement, even where other constitutional provisions are cited without particulars
- The burden of proving breach of a fundamental right rests on the person who asserts it, and does not shift until a prima facie case is made out; where discrimination is alleged on an unclassified ground, the complainant must establish unfairness
- Differentiation does not per se amount to discrimination under Article 27; a three-stage enquiry applies - rational connection to a legitimate purpose, unfair discrimination, and justification under the limitations clause
- Article 27(4) and (5) prohibits discrimination not only on the specified grounds but also on any other unclassified grounds
- A matter raising a question of public importance should be determined on its merits even though the underlying events have become moot, for the sake of posterity
Court orders
#- 1.The appeal is dismissed
- 2.The order on costs awarded by the High Court is set aside
- 3.Each party to bear their own costs in the High Court and in this Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Constitutional and Human Rights Division, Nairobi
- Petition No. 324 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (as a first appeal from the High Court); cross-appeal by the 1st respondent also entertained
Relief refused
#The appeal as a whole, including the declaration that all presidential candidates are equal during public debates and the challenge to the debate guidelines
The guidelines served a legitimate purpose and the appellant did not demonstrate unfair discrimination on an unclassified ground
Costs
Each party to bear their own costs in the High Court and in this Court (order on costs in favour of the 1st respondent set aside)
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.
In view of the above, the appeal is without merit, and is dismissed. We however set aside the order on costs, and in its place, order each party to bear their own costs in the High Court and in this Court.
the burden of proof was on Dida to show that, on a balance of probabilities, the guidelines were in violation of the prohibition set out in Article 27 which burden did not shift until a case was made out.
provisions or rules that create differences amongst affected persons do not of necessity give rise to the unequal or discriminatory treatment prohibited by Article 27, unless it can be demonstrated that such selection or differentiation is unreasonable or arbitrary and created for an illegitimate or surreptitious purpose.
A broad and liberal interpretation of the provisions would mean that not only is discrimination on the grounds classified or specified prohibited, so too are any other grounds not specifically referred to by the provisions.
there remained a question whether this was in fact the case, a matter we think ought to be determined, not only for the appellant’s sake, but also for the sake of posterity.
we consider that the court did not take into account the public interest element in the petition. The appellant was a presidential aspirant and the presidential debates were for the benefit of the public.
Issues in the judgment
#The notice of motion is dated 29th June 2014, described in the judgment itself as an erroneous date, while the surrounding events occurred in 2017
The name of the High Court division is inconsistently rendered - first 'Constitutional and Human Rights Division', later 'Constitution and Judicial Review Division' - and the petition is elsewhere described as concerning 'violation of the fundamental right to fair treatment' in relation to the cross-appeal
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.
- Leonard & 3 others v Ministry of Interior and Coordiantion of National Government & 5 others (Employment and Labour Relations Petition E001 of 2025) [2025] KEELRC 1705 (KLR)[2025] KEELRC 1705 (KLR)13 Jun 2025
- Kenyatta University v Thomas & 25 others (Civil Appeal E494 of 2022) [2025] KECA 1014 (KLR)[2025] KECA 1014 (KLR)30 May 2025
Cite this brief
#Cite this brief
Caselaw, "Dida v Debate Media Ltd & another (Civil Appeal 238 of 2017) [2018] KECA 642 (KLR)", Case Analysis (2018). Civil Appeal No. 238 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/642/eng@2018-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.