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Court of AppealAllowedCivil Application E288 of 2022· [2022] KECA 813 (KLR)

United Democratic Alliance Party v Kenya Human Rights Commission & 8 others

Court of Appeal
8 August 2022
FOFA OchiengLKLK KimaruPGPM Gachoka
668 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a High Court election ruling the day before voting, confirming IEBC must follow the NASA case rules on identifying voters.

What this practically means

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Executive summary

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On the eve of the 9th August 2022 general elections, the United Democratic Alliance Party moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of a High Court judgment delivered on 4th August 2022 in Nairobi Constitutional Petition No. E306 of 2022 (Kenya Human Rights Commission & 6 Others v IEBC & 2 Others), pending an intended appeal. A three-judge bench of Ochieng, Kimaru and Gachoka JJA delivered a short-form ruling under Rule 34(1), expressly deferring full reasons to 28th August 2022 because of urgency. The court held that the applicant had made a case for stay and granted it pending the hearing and determination of the intended appeal. Crucially, the court reiterated its decision in National Super Alliance (NASA) Kenya v IEBC & 2 Others [2017] eKLR on voter identification, directing that it shall guide the IEBC. It reproduced the 27th July 2017 IEBC Memorandum consented to by the parties in that suit: biometric verification is the primary mode of voter identification; where biometrics fail, presiding officers may use alphanumeric search in the presence of agents with the voter completing Form 32A; the printed register may be used only after Commission approval upon confirmation that the KIEMS Kit has completely failed and cannot be repaired or replaced; and the memo binds all persons applying Regulations 69 and 83 of the Elections (General) Regulations, 2012. Costs of the application were made to abide the outcome of the intended appeal.

Key legal issues

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01

Whether stay of the High Court judgment pending intended appeal should be granted

Holding

Stay was granted on the eve of the general elections, with the NASA decision on voter identification to guide the Commission.

Reasoning

The court, acting under Rule 5(2)(b), considered the written and oral submissions and the urgency created by elections scheduled for the following day. It found the applicant had made a case for stay of the High Court judgment pending the intended appeal, and reiterated the NASA decision and the 2017 Memorandum on voter identification as the operative framework.

p. 2

Legal principles established

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  • The NASA decision on identification of voters binds and shall guide the IEBC in the conduct of elections.

Court orders

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  1. 1.Stay of the judgment of the High Court delivered on 4th August 2022 in Nairobi Constitutional Petition No. E306 of 2022 pending the hearing and determination of the intended appeal
  2. 2.The decision in National Super Alliance (NASA) Kenya v IEBC & 2 Others on identification of voters shall guide the Independent Electoral and Boundaries Commission
  3. 3.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal Rules, 2022Rule 34(1)
  • Elections (General) Regulations, 2012Regulations 69 and 83

Cases cited (1)

  • National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 Others
    [2017] eKLR

    Framework for identification of voters, incorporating the IEBC Memorandum of 27th July 2017 on biometric and complementary identification mechanisms.

On appeal from
High Court
Nairobi Constitutional Petition No. E306 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "United Democratic Alliance Party v Kenya Human Rights Commission & 8 others", Case Analysis (2022). Civil Application E288 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/813/eng@2022-08-08

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