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Court of AppealAllowedCivil Appeal E389 of 2022· [2022] KECA 598 (KLR)

Ochola v Odhiambo & 2 others; Independent Electoral And Boundaries Commission (Interested Party)

Court of Appeal
8 July 2022
3,560 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that once a party nominee's name reaches the IEBC, only the IEBC—not the Political Parties Disputes Tribunal—can hear challenges to that nomination.

What this practically means

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Executive summary

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This second appeal arose from a dispute within the Orange Democratic Movement over nomination for the position of Member of County Assembly, North Gem Ward, Siaya County. The appellant lost the party primaries and internal appeals; the 1st respondent won and was issued nomination certificates. ODM nonetheless forwarded the appellant's name to the IEBC. The 1st respondent complained to the Political Parties Disputes Tribunal, which upheld its jurisdiction and ordered ODM to forward the 1st respondent's name to the IEBC. The High Court (Sergon, J.) upheld the PPDT's decision. The appellant appealed to the Court of Appeal on a single jurisdictional issue: whether the PPDT or the IEBC was seized of the dispute. Applying Section 40 of the Political Parties Act, Section 74(1) of the Elections Act and Article 88(4)(e) of the Constitution, and following its recent decision in Hussein Wenton Mohamed Abdirahmed v Deka Ali Khala, the court held that once a nominee's name has been submitted to the IEBC the process transits from party primary to nomination, and jurisdiction to challenge the nomination lies with the IEBC, not the PPDT. The uncontroverted affidavit evidence showed the appellant's name had been submitted to the IEBC by 27th May 2022. The appeal was allowed, the High Court judgment set aside, the appellant deemed validly nominated, and costs of the appeal awarded against the 1st respondent.

Key legal issues

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01

Whether the PPDT had jurisdiction to entertain a complaint after a nominee's name had been submitted to the IEBC

Holding

The PPDT lacked jurisdiction; once the nominee's name was submitted to the IEBC the process had transited from party primary to nomination, and any complaint on nomination was a matter for the IEBC.

Reasoning

Section 40 of the Political Parties Act confers jurisdiction on the PPDT over party disputes including disputes arising out of party nominations, while Section 74(1) of the Elections Act, derived from Article 88(4)(e) of the Constitution, gives the IEBC jurisdiction over disputes relating to or arising from nominations. 'Nomination' under Section 2 of the Elections Act means submission of a candidate's name to the Commission. The pleadings and affidavit evidence showed the appellant's name had been submitted to the IEBC by 27th May 2022, so the PPDT entertained a matter outside its mandate, an error of law rendering its findings amenable to being set aside.

p. 7
02

Whether the PPDT's failure to consider uncontroverted affidavit evidence was a misdirection

Holding

Yes. Despite the 1st respondent's own sworn affidavit stating the appellant's name had been forwarded to the IEBC, the PPDT went ahead to entertain the matter and clothe itself with jurisdiction, a misdirection amounting to an error of law.

Reasoning

The matter was determined on affidavit and documentary evidence with no oral evidence. The 1st respondent's affidavit of 27th May 2022 asserted that his name was missing from the published list and that the appellant's name had been forwarded instead. No affidavit was filed to controvert those assertions, yet the PPDT proceeded to assume jurisdiction on a misapprehension of the roles of the parties, based on an erroneous understanding of what amounts to nomination.

p. 6

Legal principles established

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  • Where a nominee's name has already been submitted to the IEBC, the process is deemed to have transited from party primaries to nomination and the jurisdiction to challenge the nomination lies with the IEBC, not the PPDT.
  • A court's jurisdiction flows from the Constitution or legislation and cannot be expanded through judicial craft or innovation.

Court orders

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  1. 1.The appellant's appeal be and is hereby allowed
  2. 2.The judgment of the High Court (J.K. Sergon, J.) delivered on 20th June, 2022 in HCCA No. E384 of 2022 be and is hereby set aside
  3. 3.The appellant be and is hereby deemed to have been validly nominated as the ODM's Party nominee for the position of Member of County Assembly, North Gem Ward, Siaya County
  4. 4.The costs of this appeal be borne by the 1st respondent

Authorities

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Legislation

  • Political Parties ActSection 40(1) and (2)
  • Political Parties ActSection 40(fa)
  • Political Parties ActSection 41(2)
  • Political Parties ActSection 38(1)
  • Elections ActSection 74(1)
  • Elections ActSection 2
  • Constitution of KenyaArticle 88(4)(e)
  • ODM Party Primaries and Nomination Rules 2022Rule 4(n) and Rule 47(4)
  • Act No. 21 of 2016

Cases cited (8)

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others
    [2012] eKLR

    Jurisdiction flows from the Constitution or legislation; a court cannot arrogate or expand jurisdiction through judicial craft.

  • Phoenix of E.A Assurance Company Limited vs. S. M. Thiga t/a Newspaper Service
    [2019] eKLR

    Proceedings heard without jurisdiction are a nullity ab initio, set aside ex debito justitiae.

  • The Owners of the Motor Vessel "Lilian" vs. Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Jurisdiction is everything; a court downs tools the moment it holds it is without jurisdiction.

  • Joseph Ibrahim Musyoki vs. Wiper Democratic Movement - Kenya & Another
    [2017] eKLR

    Parties bound by pleadings; process transits from party primary to nomination once name submitted to IEBC, jurisdiction lying with IEBC.

  • Hussein Wenton Mohamed Abdirahmed vs- Deka Ali Khala & 3 Others
    Civil Appeal No. E326 of 2022 (unreported)

    Where a nominee's name has been submitted to the IEBC, jurisdiction to challenge the nomination lies with the IEBC under Article 88(4)(e).

  • Malawi Railways Ltd vs. Nyasulu
    [1998] MWSC 3

    Parties set the agenda for trial by their pleadings and are bound by them.

  • Hon Elisha Ochieng Odhiambo vs Dr. Jalango Midiwo & 3 others
    PPDT No. E003 of 2022

    Cited by 1st respondent on PPDT jurisdiction over party nomination disputes.

  • Dr. Jalango Midiwo vs Elisha Ochieng Odhiambo
    Siaya HCCA No. 26 of 2022 (unreported)

    Cited by 1st respondent: forwarding a name to IEBC after successful nomination is administrative; PPDT can compel party to follow its rules.

On appeal from
High Court of Kenya at Nairobi
H.C.C.A No. E384 of 2022
Jurisdiction invoked
Section 41(2) of the Political Parties Act (appeal on points of law to the Court of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ochola v Odhiambo & 2 others; Independent Electoral And Boundaries Commission (Interested Party)", Case Analysis (2022). Civil Appeal E389 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/598/eng@2022-07-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.