Ochola v Odhiambo & 2 others; Independent Electoral And Boundaries Commission (Interested Party)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the PPDT had jurisdiction to entertain a complaint after a nominee's name had been submitted to the IEBC
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.
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.
Whether the PPDT's failure to consider uncontroverted affidavit evidence was a misdirection
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.
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.
Legal principles established
#- 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
#- 1.The appellant's appeal be and is hereby allowed
- 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.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.The costs of this appeal be borne by the 1st respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.