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Court of AppealPartially AllowedElection Petition Appeal E002 of 2022· [2022] KECA 625 (KLR)

Moturi v Geni & another

Court of Appeal
8 July 2022
PKP. O. KiageHOH. A. OmondiFTF. Tuiyott
5,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that any letter of protest to a political party can trigger internal dispute resolution, giving the Political Parties Disputes Tribunal jurisdiction.

What this practically means

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Executive summary

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This is the Court of Appeal's reasons for allowing Zachary Nyayiemi Moturi's appeal against the High Court of Kenya at Kisumu (Ochieng, J.), which had allowed Charles Mong'are Geni's appeal and set aside the Political Parties Disputes Tribunal's decision in favour of Moturi. The Tribunal had quashed the Wiper Democratic Movement Party's nomination certificate issued to Geni for North Mugirango Constituency, declared Moturi the duly nominated candidate, and directed issuance of a certificate and forwarding of his name to the IEBC. The High Court had held the Tribunal lacked jurisdiction because Moturi had not exhausted the party's internal dispute resolution mechanism under Section 40(2) of the Political Parties Act. The Court of Appeal, in a unanimous judgment, framed a single issue: whether there was a competent appeal before the superior court. It held the High Court's record omitted the PPDT proceedings and, critically, Moturi's letter of 27th April 2022, which was central to the jurisdiction question; the Judge's determination without it was a fundamental error. On the merits, the Court held the letter was not merely a protest but a trigger to the IDRM process, satisfying Section 40 and conferring jurisdiction on the PPDT. It also endorsed the Tribunal's finding that service on the Party through its website email address was properly effected. The appeal was accordingly allowed in terms of the Court's judgment. No separate costs order appears in the reasons.

Key legal issues

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01

Whether there was a competent appeal before the High Court

Holding

The record before the High Court omitted the PPDT proceedings and the appellant's letter of 27th April 2022, which was central to the jurisdiction question; the Judge's determination without it was a fundamental error.

Reasoning

Order 42 Rule 13(4) prescribes a complete record of appeal. The omitted letter raised the fundamental question whether it was a protest letter or a trigger to the IDRM. The Judge neither excluded it expressly nor recorded reasons for exclusion, and there was no definite consensus by the parties to proceed without it. Its centrality to the PPDT's jurisdiction made it a document of signal relevance.

02

Whether the letter of 27th April 2022 satisfied the IDRM requirement under Section 40 of the Political Parties Act

Holding

The letter was not merely a protest; it triggered the IDRM process and met the threshold of attempted internal dispute resolution, conferring jurisdiction on the PPDT.

Reasoning

Section 40 requires an aggrieved party to approach the party's IDRM first; all that is required is demonstration that the process was triggered and failed, bore no fruit, or was ignored. No format is prescribed for the letter. The letter protested the nomination of the 1st respondent and should have been heard, so the PPDT had the requisite jurisdiction.

p. 8
03

Service on the 2nd respondent

Holding

The Court agreed with the PPDT that service was properly effected through the email address displayed on the Party's website.

Reasoning

The PPDT had found that the Party and its organs are the same entity for purposes of service, and that the email used belonged to the Party as counsel confirmed. The Court of Appeal endorsed that finding, reversing the High Court's view that the issue required cross-examination of the process server before the Tribunal.

p. 8

Legal principles established

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  • A letter of protest to a political party can constitute a trigger of the internal dispute resolution mechanism, conferring jurisdiction on the PPDT, even without a formal format.
  • A first appellate court may not upset a Tribunal's decision without the critical primary documents, notably where the record of appeal omits material central to jurisdiction.

Court orders

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  1. 1.Appeal allowed in terms of the court's judgment
  2. 2.Finding that the letter dated 27th April 2022 was a trigger to the IDRM process conferring jurisdiction on the PPDT
  3. 3.Endorsement of the PPDT's finding that service was properly effected through the Party's website email address

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 50
  • Fair Administrative Action ActSection 4(1) and (3)
  • Political Parties ActSection 40(2)
  • Civil Procedure Rules, 2022Order 5 Rule 22B
  • Civil Procedure RulesOrder 42 rule 13(4)
  • Evidence ActSection 107
  • Civil Procedure ActSection 27(1)

Cases cited (10)

  • Communications Commission of Kenya & 5 Others vs. Royal Media Services & 5 Others

    Legitimate expectation - relied on by the appellant before the Tribunal

  • Elias Barre Shill vs. Aden Sugow Ahmed & 2 Others
    [2003] eKLR

    Where service is disputed, the remedy is to summon the process server

  • Josphine Wambui Mwangi v Michael Mukundi Ngungi
    [2021] eKLR

    Record of appeal as fundamental component of an appeal

  • Law Society of Kenya vs Centre for Human Rights and Democracy & Others

    Documents mandatorily required in a record of appeal

  • Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others
    [2014] eKLR

    Affirming the mandatory list of documents in a record of appeal

  • Bracegirde vs. Oxley

    Distinction between primary facts and conclusions on appeal

  • Mukisa Biscuit Manufacturing Co. Ltd. Vs. West End Distributors Ltd
    [1969] EA 696

    Preliminary objections - cited by 2nd respondent

  • Serah Njeri Mwobi v John Kimani Njoroge
    [2013] eKLR C.A No. 314 of 2009

    Estoppel from abandoning a right - cited by 2nd respondent

  • Political Parties Forum Coalition & 3 Others v Registrar of Political Parties & 8 Others
    [2016] eKLR

    Court bound by pleadings - cited by 2nd respondent

  • Jones vs. National Coal Board
    [1957] 2 QB 55

    Court bound by the pleadings filed by the parties

On appeal from
High Court of Kenya at Kisumu
Kisumu Election Petition Appeal No. E001 of 2022
Jurisdiction invoked
Appeal from the High Court sitting on appeal from the Political Parties Disputes Tribunal under the Political Parties Act; election petition appeal jurisdiction

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, "Moturi v Geni & another", Case Analysis (2022). Election Petition Appeal E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/625/eng@2022-07-08

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