Tom Odege v Edick Peter Omondi Anyanga & 3 others [2019] KECA 601 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that courts and tribunals can cancel a flawed party nomination, but only the political party itself may choose its candidate.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court Judge could nominate a candidate for a political party
The Judge had no constitutional, legal or regulatory mandate to nominate a candidate for ODM; the court's policing power is limited to examining the nomination process and directing a repeat exercise where flaws vitiate the process
The court construed Articles 38, 47, 50, 81 and 99 of the Constitution, sections 13, 22, 24, 27, 31 and 35 of the Elections Act, sections 6, 39, 40 and 41 of the Political Parties Act and the election regulations. It found that ODM, as the main actor in the nomination, must itself conduct and rectify the exercise; the PPDT lacks power to direct the nomination of a particular candidate, and a fortiori the Judge lacked power to declare one.
Whether the Judge's finding that Hon. Anyanga's nomination certificate was genuine was sustainable
No; the Judge did not explain how he came into possession of the original certificate, there was no analysis of evidence, and the forgery contestation called for expert evidence which was not undertaken
Nowhere in the judgment did the Judge explain how he obtained Hon. Anyanga's original certificate or why it was to be preferred over that relied on by Odege. The affidavits of ODM officials denying signature on the certificate were uncontroverted. Resolving the forgery dispute required expert evidence; absent such evidence the conclusion that the certificate was genuine was unsupported.
Whether the Judge erred by deciding on the candidates' popularity
Yes; popularity is not a criterion under Article 99 or Article 38 for nomination or election as a member of parliament, and the Judge failed to construe and apply the applicable statutory provisions
The court held the Judge embarked on re-evaluating vote tallies and popularity without construing the constitutional and statutory framework governing party nominations. The Constitution guarantees fair play, free and fair elections based on universal suffrage, and fair administrative action, not judicial selection of the most popular aspirant.
The scope of the Court of Appeal's mandate in the appeal
The Court's mandate is limited to points of law under section 41(2) of the Political Parties Act
The court invoked section 41(2) of the Political Parties Act, which allows appeals from the Tribunal's decisions on points of law to the Court of Appeal and Supreme Court, and confined itself to the legal issues condensed from the grounds of appeal.
Legal principles established
#- A political party, through its own organs, is the entity charged with conducting its primaries and rectifying errors in the nomination exercise in accordance with constitutional, legal and regulatory provisions
- The PPDT's mandate under the Political Parties Act does not include power to direct a political party to nominate a particular candidate
- A court may only examine the nomination process for flaws and, where flaws vitiate the entire process, direct a repeat of the nomination exercise; it may not itself nominate a candidate
- Popularity of a candidate is not a constitutional criterion for eligibility for nomination or election as a member of parliament
Court orders
#- 1.The consolidated Appeals numbers CA 166/2017 and 167/2017 be and are hereby allowed
- 2.The judgment of the Hon. Mr. Justice Luka Kimaru, J delivered on the 31st day of May, 2017 be and is hereby set aside
- 3.The nomination of Edick Peter Omondi Anyanga as ODM's candidate for member of the National Assembly, Nyatike Constituency, pursuant to the orders of Kimaru, J of 31st May, 2017 is set aside
- 4.ODM is directed to conduct a fresh nomination exercise for Member of the National Assembly for Nyatike Constituency by way of universal suffrage within 48 hours
- 5.Each party to bear their own costs
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition Appeal No. 89 of 2017
- Jurisdiction invoked
- Section 41(2) of the Political Parties Act No. 11 of 2011 - appeal to the Court of Appeal on points of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tom Odege v Edick Peter Omondi Anyanga & 3 others [2019] KECA 601 (KLR)", Case Analysis (2019). Civil Appeal No. 166 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/601/eng@2019-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.