Kawaka & another v Ouma & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Determination of un-pleaded issues
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.
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.
PPDT jurisdiction versus power over nomination method
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.
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.
Failure to address framed issues and evidence
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.
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
#- 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
#- 1.Appeal allowed in its entirety
- 2.High Court judgment and decree of 6th July 2022 set aside in entirety
- 3.IEBC Dispute Committee's judgment revoking the 1st respondent's nomination reinstated
- 4.No orders on costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.