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Court of AppealPartially AllowedElection Petition Appeal 168 of 2022· [2022] KECA 728 (KLR)

Kawaka & another v Ouma & 3 others

Court of Appeal
29 July 2022
4,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated a revoked ODM nomination, ruling that courts must stick to pleaded issues and that the PPDT can order repeat nominations.

What this practically means

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Executive summary

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This is the Court of Appeal's reasoned judgment, delivered on 29 July 2022, for its extempore decision of 14 July 2022 allowing an election petition appeal arising from the ODM party primaries for the South Kabuoch Ward MCA seat ahead of the 9 August 2022 general election. The 1st respondent won the initial universal-suffrage primary; the Political Parties Dispute Tribunal nullified it for electoral violence and ordered a fresh nomination by universal suffrage within 72 hours. ODM instead directly nominated the 1st respondent, invoking its nomination rules. The IEBC Dispute Resolution Committee upheld the nullification, and the 1st respondent petitioned the High Court, which quashed the IEBC decision on the sole ground that the PPDT had exceeded its jurisdiction by dictating the nomination method, since Section 38A of the Political Parties Act leaves the choice of method to the party. The Court of Appeal allowed the appeal on three grounds. First, the High Court erred by abandoning the pleaded dispute and determining, suo moto, the un-pleaded question of the PPDT's jurisdiction over the initial primary, contrary to the rule that parties are bound by their pleadings and that new issues cannot be raised in submissions. Second, the High Court conflated jurisdiction with power: the PPDT, exercising jurisdiction under Section 40, had both the jurisdiction and power to order a repeat by universal suffrage where it nullified an initial election held by that method, party autonomy being checked by Sections 38C and 38E and Article 91(1). Third, the High Court failed to address crucial framed issues, including automatic disqualification under ODM Rule 17(1)(f) for violence. The Court set aside the High Court judgment in its entirety, reinstated the IEBC Dispute Committee's decision revoking the 1st respondent's nomination, and made no orders on costs, the costs issue having become moot.

Key legal issues

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01

Determination of un-pleaded issues

Holding

The High Court erred in law by abandoning the pleaded dispute (IEBC jurisdiction and validity of nomination in violation of PPDT orders) and determining a fresh un-pleaded issue on PPDT jurisdiction suo moto.

Reasoning

Parties are bound by their pleadings; a court may only determine issues flowing from the pleadings or framed for determination. The learned Judge revisited the PPDT order without any party pleading it and without inviting submissions, violating the appellants' right to be heard. The 1st respondent's attempt to raise the PPDT's power in submissions was belated and foundationless.

p. 5
02

PPDT jurisdiction versus power over nomination method

Holding

The High Court conflated jurisdiction with power; the PPDT, having jurisdiction under Section 40 of the Political Parties Act, may order a repeat by universal suffrage where it nullifies an initial election held by that method.

Reasoning

Section 38A gives parties a choice of method, but that freedom is checked by Section 38C (members' right to participate), Section 38E (notification of method), and Article 91(1) (democratic principles). Once the party chose universal suffrage, switching to direct nomination without consulting members or candidates defied the PPDT order and undermined a level playing field.

p. 8
03

Failure to address framed issues and evidence

Holding

The High Court erred in failing to address crucial issues including automatic disqualification under ODM Rule 17(1)(f) for violence and the eligibility for direct nomination under ODM's rules.

Reasoning

The trial Judge identified the parties' issues and acknowledged consensus on them, yet addressed none except the un-pleaded PPDT jurisdiction issue. Issues such as violation of a court order, ultra vires conduct under Section 74, and disqualification for violence were crucial to the dispute; failing to resolve them was a grave error rendering the judgment defective.

Legal principles established

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  • Courts are confined to issues flowing from the pleadings and may not determine un-pleaded issues suo moto without inviting parties to address them
  • New issues cannot be introduced for the first time in submissions
  • The PPDT has both jurisdiction and power to order a repeat nomination by universal suffrage where it nullifies an initial election held by universal suffrage
  • A political party's discretion over nomination method is checked by members' right to participate and by the method chosen for the election cycle

Court orders

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  1. 1.Appeal allowed in its entirety
  2. 2.High Court judgment and decree of 6th July 2022 set aside in entirety
  3. 3.IEBC Dispute Committee's judgment revoking the 1st respondent's nomination reinstated
  4. 4.No orders on costs

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 34(7)
  • Political Parties ActSection 38A
  • Political Parties ActSection 40
  • Political Parties ActSection 38C
  • Political Parties ActSection 38E
  • Constitution of Kenya, 2010Articles 19, 20, 24, 25, 38, 40, 47, 50
  • Constitution of Kenya, 2010Article 91(1)
  • Constitution of Kenya, 2010Article 23
  • Orange Democratic Movement Party Primaries and Nomination Rules, 2021Rule 17(1)(f)

Cases cited (13)

  • Dennis Gakuu Wahome versus The Independent Electoral and Boundaries Commission
    Nairobi High Court Constitutional Petition No. 321 of 2022

    High Court properly invoked supervisory jurisdiction addressing a dispute from its roots

  • Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others
    [2017] eKLR

    Elections are a process and not a voting day event

  • Thomas Ludindi Mwadeghu vs John Mruttu & Another
    [2017] eKLR

    It is the duty of the party to decide the nomination process and its nominee

  • Samuel Owino Wakiaga versus The Orange Democratic Movement Party & 2 Others
    [2017] eKLR

    Courts should not micro-manage parties on mundane nomination matters

  • James Onyango Koyoo versus Hezron Otieno Mc'Obewa
    Civil Appeal No. E305 of 2022

    PPDT's role stops at ordering repeat nominations; method is the party's preserve

  • John Kamunya & another v John Nginyi Muchiri & 3 others
    [2015] eKLR

    Courts determine only issues flowing from the pleadings; parties confined to pleadings

  • Clips Ltd vs Brands Imports (Africa) Ltd formerly named Brand Imports Ltd
    [2015] eKLR

    New issues cannot be raised in submissions

  • Julius Lekakeny ole Sunkuli v Gideon Sitelu Konchellah & 2 others
    [2018] eKLR

    A judgment must identify and resolve the vital issues

  • Henry Milimu Shililu v Orange Democratic Movement & 2 others
    [2017] eKLR

    Courts will intervene where party machinery tampers with or manipulates the electoral process

  • Orange Democratic Movement v Fredrick Okolla Ojwang & 2 others
    [2018] eKLR

    Opting for direct nomination in defiance of an order for repeat universal suffrage is flagrant disobedience

  • ODM National Election Board and Anor v Hon. John Ombewa Gare and 2 Others
    Kisumu Election Petition Civil Appeal No. E003 of 2022

    Direct nomination is an election while indirect is a selection; Section 38E requires notification of nomination method

  • Moses Odhiambo Ochele vs Achan Ojuki Gordon & 2 others
    Kisumu Civil Appeal No. E037 of 2022

    Once fresh nomination is ordered, party must repeat the originally adopted method

  • Jasbir Singh Rai & Others vs Tarlochan Rai & Others
    [2014] eKLR

    Costs follow the event but public-interest litigation may attract a different approach

On appeal from
High Court of Kenya at Homa Bay
Kisumu Election Petition No. 1 of 2022
Jurisdiction invoked
Election Petition Appeal under the Elections Act and Court of Appeal Rules, 2022 (Rule 34(7))

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, "Kawaka & another v Ouma & 3 others", Case Analysis (2022). Election Petition Appeal 168 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/728/eng@2022-07-29

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