ODM National Election Board & another v Gare & 2 others
The bottom line
#Kenya's Court of Appeal ruled that ODM had to redo its nomination the same way it originally promised, and couldn't change the rules to avoid compliance.
What this practically means
#Executive summary
#Key legal issues
#Scope of appeal under section 41(2) of the Political Parties Act
The appeal lies on points of law only, but issues of fact or evidence will sometimes be matters of law, following Munya v Githinji
The Court invoked the Supreme Court's construction of 'matters of law only' under section 85A of the Elections Act, which includes questions of interpretation or construction, application of a provision to facts, and conclusions based on no evidence or perverse conclusions. This allowed the Court to test the PPDT's conclusion that the impossibility grounds were not in the contemplation of the applicants at the time of the decree.
Whether the PPDT's refusal of review was lawful
The refusal was lawful; the review application was not made in good faith and was an attempt to avoid compliance
The only evidence supporting impossibility concerned non-availability of public schools. Three days before the review application, the appellants' deponent had sworn she was willing to comply with the judgment and decree without stating impossibility. The Court found the change of position unexplained, the application made in bad faith, and endorsed the PPDT's conclusion that internal problems of recruitment and choice of mode did not warrant review.
Whether the PPDT could direct the method of nomination
The PPDT did not usurp the party's mandate; the direction for universal suffrage was in effect an order for a repeat of the process the party had initially chosen
Although section 38A gives parties latitude to choose nomination methods, ODM had chosen universal suffrage in the first instance. Once that exercise was nullified, the repeat exercise had to be by the same method unless impossibility was demonstrated and section 38E notification made. The Court endorsed the High Court's holdings that the PPDT did not usurp the mandate of the party or its Elections Board.
Distinction between 'repeat nomination' and 'fresh nomination'
The distinction is without a difference; a second exercise after nullification is both a repeat and a fresh nomination
The nomination of 13th April 2022 had been nullified by the Party Tribunal, so any subsequent exercise was a second undertaking - a repeat of the process - and simultaneously a fresh nomination. Even Trufosa's own appeal sought 'repeat and fresh nominations' in the alternative. The Court endorsed the High Court's reasoning that one cannot repeat something which had not yet been done.
Legitimate expectation and intra-party democracy
The party's choice of universal suffrage created a legitimate expectation of a participatory process that had to be honoured in the repeat exercise
Relying on the Supreme Court's recognition of legitimate expectation in CCK v Royal Media Services, the Court held that the choice of universal suffrage was a promise to party members which had to be kept. Section 38E notification requirements and the Code of Conduct for Political Parties underscore that members are not mere bystanders; changing the rules of the game without notifying membership is inimical to intra-party democracy.
Legal principles established
#- An appeal from the PPDT to the Court of Appeal lies on points of law only and the decision of the Court of Appeal is final
- Where a party's chosen nomination method (universal suffrage) is nullified, the repeat exercise must be by the same method unless the party demonstrates impossibility due to intervening circumstances and makes the notification required by section 38E
- A party responding to an application for contempt must do so with utmost candour; a party cannot approbate and reprobate by promising compliance then seeking review on impossibility
- A party has unfettered discretion on the method to employ in conducting its party nominations, but members of the party are not mere bystanders to the process
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Kisumu
- HC Election Appeal No. E044 of 2022 (Consolidated with E045 of 2022)
- Jurisdiction invoked
- Section 41(2) of the Political Parties Act - second appeal to the Court of Appeal on points of law only, decision of this Court final
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kawaka & another v Ouma & 3 others[2022] KECA 728 (KLR)29 Jul 2022followed
Cite this brief
#Cite this brief
Caselaw, "ODM National Election Board & another v Gare & 2 others", Case Analysis (2022). Civil (Election) Appeal E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/919/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.