[2017] KECA 475 (KLR)
The Court of Appeal found that the nomination process for the position of Member of County Assembly, Korogocho Ward, was not conducted in a manner that met the required standards of transparency and accountability as set out in the party's constitution and election rules. The High Court erred in confirming the 2nd...
Source-derived case information.
- Citation
- [2017] KECA 475 (KLR)
- Parties
- Appellant: Maxwell Ochieng’; Respondent: The Orange Democratic Movement; Respondent: George Omondi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 170 of 2017
- Procedural Posture
- Election Petition / Second Appeal From High Court Judgment
- Outcome
- appeal_partially_allowed
- Judges
- RN Nambuye, DK Musinga
- Legal Topics
- Party Primaries, Nomination Disputes, Election Results, Internal Party Processes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maxwell Ochieng’
Appellant
The Orange Democratic Movement
Respondent
George Omondi
Respondent
Procedural Posture
Election Petition / Second Appeal From High Court Judgment
Legal Issues
- 1 Whether the nomination process for Member of County Assembly, Korogocho Ward, was conducted in accordance with the law and party rules.
- 2 Whether the High Court erred in confirming the 2nd respondent as the lawful nominee despite alleged irregularities.
- 3 Whether the appellant was entitled to be issued with the nomination certificate based on the County Appeals Tribunal decision.
Ratio Decidendi
The Court of Appeal found that the nomination process for the position of Member of County Assembly, Korogocho Ward, was not conducted in a manner that met the required standards of transparency and accountability as set out in the party's constitution and election rules. The High Court erred in confirming the 2nd respondent as the nominee without adequately addressing the irregularities raised by the appellant. The appropriate remedy was not to declare the appellant the nominee, but to order a fresh nomination exercise to ensure compliance with the law and party procedures. The court thus set aside the High Court judgment and directed the 1st respondent to conduct a new nomination within...
Court Disposition
appeal_partially_allowed
Orders
- The appeal is partially allowed.
- The High Court judgment dated 2nd June, 2017 is set aside.
Full Case Text
Judgment text and source record
40 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: NAMBUYE, MUSINGA & GATEMBU, JJ.A.)
CIVIL APPEAL NO. 170 OF 2017
BETWEEN
MAXWELL OCHIENG’ ……………………..…....…….………….. APPELLANT
VERSUS
THE ORANGE DEMOCRATIC MOVEMENT ….......………….. 1STRESPONDENT
GEORGE OMONDI …………………………………………… 2NDRESPONDENT
(Being an appeal from the Judgment and Order of the High Court of Kenya at Nairobi (Lesiit, J.) delivered on 2ndJune, 2017
in
ELECTION PETITION APPEAL NO. 79 OF 2017)
******************************
JUDGMENT OF THE COURT
1. This is a second appeal from the original judgment of the Political Parties Disputes Tribunal (PPDT), in relation to the 1st respondent’s party primaries conducted on 30th April, 2017 for the position of Member of County Assembly, Korogocho Ward, Ruaraka Constituency, Nairobi County.
2. The appellant alleged that he garnered 635 votes against the 2nd respondent’s 568 votes but the Returning Officer unlawfully declared the 2nd respondent as the winner, saying that he obtained 619 votes while the appellant managed 600 votes.
3. The appellant contested the results and filed a complaint before the 1st respondent’s County Appeals Tribunal, which ruled in his favour; revoked the 2nd respondent’s nomination certificate; and ordered that the appellant be issued with the nomination certificate.
4. That notwithstanding, the 1st respondent issued the 2nd respondent with the final nomination certificate, prompting the appellant to file a complaint before the PPDT.
5. The PPDT allowed the appellant’s complaint; annulled the nomination certificate that had been issued to the 2nd respondent; and ordered the 1st respondent to conduct fresh nomination exercise for the aforesaid position.
6. The appellant was dissatisfied with the PPDT’s decision and preferred an appeal to the High Court; arguing, inter alia, that the PPDT erred in law in finding that the entire nomination process was opaque, unaccountable and inaccurate; and for ordering a repeat of the nomination exercise. He urged the Court to compel the 1st respondent to issue him with the final nomination certificate.
7. The High Court (Lesiit, J.) overturned the PPDT’s decision; dismissed the appeal; and confirmed the nomination of the 2nd respondent. That is the decision that gave rise to this appeal.
8. In his memorandum of appeal, the appellant argued, inter alia, that the learned judge erred in law by holding that the results as announced by the Returning Officer, Korogocho Ward, were accurate and reflected the voters’ will in the said ward; and by confirming the 2nd respondent as the lawful nominee of the 1st respondent for the position of Member of County Assembly, Korogocho Ward. He urged the Court to set aside the impugned judgment; affirm him as the 1st respondent’s lawful nominee for the aforesaid position; compel the 1st respondent to issue him with the final nomination certificate and forward his name to the IEBC as the duly nominated party’s candidate for the said position.
9. The appeal came up for hearing on 21st June, 2017. Miss Awuor held brief for Prof. Ojienda, S.C. for the appellant, while Mr. Muango appeared for the 2nd respondent. The 1st respondent was unrepresented.
10. Upon hearing counsel and upon a careful consideration of the entire record of appeal, the written submissions, including the cited authorities, and for reasons that the Court shall give on 28th July, 2017, we hereby make the following orders:
(a) The appeal is partially allowed,
(b) The High Court judgment dated 2ndJune, 2017 is set aside,
(c) The 1strespondent is ordered to conduct fresh nomination exercise for the position of Member of County Assembly, Korogocho Ward, Ruaraka Constituency within Nairobi County, in accordance with its Constitution and current Election and Nomination Rules, within 48 hours from 4. 00 p.m. today.
(d) Each party shall bear its own costs.
Dated and delivered at Nairobi this 23rdday of June, 2017.
R. N. NAMBUYE
…………………………………..
JUDGE OF APPEAL
D.K. MUSINGA
……………..….………………
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb
…………………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR