Ongiro v Independent Electoral & Boundaries Commissioner (IEBC) & another; Orange Democrative Movement Party (Interested Party) (Election Petition 2 of 2022) [2022] KEMC 10 (KLR)
The bottom line
#The Oyugis election court dismissed a petition over an MCA election because the same nomination dispute had already been decided by other Kenyan tribunals and courts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has the jurisdiction to hear and determine this petition.
- 2.Whether the principle of res judicata vis-à-vis estoppel subsists to an extent of barring this court from hearing and determining this petition.
Key legal issues
#Jurisdiction of the election court over pre-election disputes
The court is seized with jurisdiction to hear the petition despite the pre-election origin of the dispute
The court found that although neither the Constitution nor the Elections Act expressly confers jurisdiction over pre-election disputes on the election court, the lacuna is filled by precedent from superior courts. Applying Raila 2, Mohammed Abdi Mohamud and Anne Wanjiku Kibeh, which hold that an election is a process including nomination, the court held it could hear a petition alleging that non-compliance with nomination law affected the validity of the election.
Estoppel under section 120 of the Evidence Act
Estoppel does not avail against the Petitioner; the 1st Respondent failed to demonstrate the conditions for estoppel against her
The court set out the conditions for estoppel from Carol Construction and the Indian authority Chhaganlal Mehta, and found the 1st Respondent had not demonstrated them against the Petitioner. Estoppel, if any, would operate between the 1st Respondent, the interested party and the 2nd Respondent, who have no dispute between them; the Petitioner had not acted as though the battle was over.
Res judicata under section 7 of the Civil Procedure Act
The petition is barred by res judicata; the nomination issues were already determined by the ODM Tribunal, PPDT, and the High Court
The court found the nomination dispute had been litigated and decided in various forums including PPDT No E012 of 2022 and High Court appeals. It also found that Geofirey Otieno Opiyo, the former complainant, was disguising himself behind the voter Naomi Auma Ongiro, the parties being effectively the same and the issues the same. The court declined to enforce or resurrect orders from prior forums and sustained the preliminary objection.
Legal principles established
#- An election is a process, not a single-day event, so an election court may inquire into pre-election nomination disputes touching on eligibility and qualification
- Section 7 of the Civil Procedure Act bars resurrection of matters already heard and finally decided by competent forums
Court orders
#- 1.The preliminary objection on res judicata is sustained.
- 2.The entire petition is dismissed.
- 3.Each party to bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 87 of the Constitution and section 75(1A) of the Elections Act; gazette notice Vol CXXIV-No 190 dated September 16, 2022 designating the court
Relief refused
#Determination of the petition challenging the 2nd Respondent's election as member of County Assembly, South Kasipul Ward
Petition barred by res judicata, having been determined in prior forums
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the foregoing, I thus, find that this court is seized with necessary jurisdiction to hear and determine this petition. The petition is rightly brought before this court for determination.
It is on this basis I find that the estoppel principle does not avail as against the Petitioner.
It follows therefore, the preliminary objection on the issue of res judicata is sustained. Consequently, the entire petition is dismissed.
I find thus, the most appropriate orders though may seem not popular to make, in this like circumstances, is to direct each party to bear on costs.
Issues in the judgment
#The judgment holds the court has jurisdiction to hear the petition but simultaneously dismisses it on res judicata, an internally apparent tension in the disposition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongiro v Independent Electoral & Boundaries Commissioner (IEBC) & another; Orange Democrative Movement Party (Interested Party) (Election Petition 2 of 2022) [2022] KEMC 10 (KLR)", Case Analysis (2022). Not stated in the judgment (election petition, Resident Magistrate's Court, Oyugis). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/10/eng@2022-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.