[2017] KEHC 3273 (KLR)
The court held that once the gazettement of nominated members is completed, the process of election by nomination is concluded and any disputes arising thereafter are election disputes that fall within the exclusive jurisdiction of the Election Court. The High Court, not sitting as an Election Court, cannot grant...
Source-derived case information.
- Citation
- [2017] KEHC 3273 (KLR)
- Parties
- Appellant: Mourine Atieno Ochieng; Appellant: Erick Ouma Opany; Respondent: Orange Democratic Movement; Respondent: Roger Miller Ochieng
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Appeal 37 of 2017
- Procedural Posture
- Election Nomination Appeal / Ruling on Appeal
- Outcome
- appeal dismissed
- Judges
- FM Mutuku
- Legal Topics
- Party List Nominations, Youth Category Qualification, Gazettement Effect, Jurisdiction of Election Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mourine Atieno Ochieng
Appellant
Erick Ouma Opany
Appellant
Orange Democratic Movement
Respondent
Roger Miller Ochieng
Respondent
Procedural Posture
Election Nomination Appeal / Ruling on Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to grant orders relating to party list nominations after gazettement.
- 2 Whether the appellants qualify as youth under the law for nomination to the Migori County Assembly party list.
- 3 Whether the court can grant a declaration of youth status post-gazettement.
Ratio Decidendi
The court held that once the gazettement of nominated members is completed, the process of election by nomination is concluded and any disputes arising thereafter are election disputes that fall within the exclusive jurisdiction of the Election Court. The High Court, not sitting as an Election Court, cannot grant orders that would interfere with the gazetted list or make declarations regarding the qualification of nominees post-gazettement. The appropriate recourse for the appellant is to file an election petition before the Election Court. Accordingly, the prayer for a declaration of youth status was declined.
Court Disposition
appeal dismissed
Orders
- Prayer (b) of the Memorandum of Appeal is declined.
- No order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELECTION NOMINATION APPEAL NO. 37 OF 2017
MOURINE ATIENO OCHIENG …………….…..…….1ST APPELLANT
ERICK OUMA OPANY………………………….……2ND APPELLANT
VERSUS
ORANGE DEMOCRATIC MOVEMENT……………1ST RESPONDENT
ROGER MILLER OCHIENG……………………......2ND RESPONDENT
RULING
This Appeal dated 23rd August 2017 was filed on 25th August 2017 together with Notice of Motion of the same date. The Appeal is against the decision of the Political Parties Disputes Tribunal (PPDT) delivered on 29th July 2017. The Notice of Motion sought stay of that judgment pending the hearing and determination of the Appeal. This court directed the Appellants to serve the Appeal for the hearing of the same to save on time. The hearing of the Appeal was fixed for today 5th September 2017. This morning Mr. Ayieko for the Appellants informed the court that the 1st Appellant has withdrawn instructions from him and therefore he was appearing for the 2nd Appellant alone.
The two Appellants had appeared before the PPDT as Interested Parties in Complaint No. 438 of 2017. Their names had been included in the Migori County Assembly Party List in the Youth Category. PPDT in its judgment declared that the two Interested Parties do not qualify for nomination as youth and the Respondent was ordered to replace their names with other qualified persons. This is the reason they filed this Appeal.
This morning Mr. Ayieko for the 2nd Appellant told the court that gazettement of the names of nominees for Migori County Assembly was done on 28th August 2017 and that his client is not among the gazetted nominees. He asked the court to grant prayer (b) of the Appeal since prayer (a) that required setting aside the judgment of the PPDT has been overtaken by events. Counsel told the court that he has attached the 2nd Appellant’s birth certificate and national identity card to prove that he is a youth as defined by the law. Prayer (b) of the Memorandum of Appeal which Mr. Ayieko seeks to be granted seeks a declaration that the Appellants are youths and thus belong to the special interest category of youths.
I have considered this matter. As I have stated in various decisions including JR No. 501 of 2017 Jubilee Party v. IEBC and Hellen Wanjiku & Others (UR) and Election Nomination Appeal No. 36 of 2017 Zaynab Allyow Issack v. Jubilee Party (UR), that gazettement of the nominated members through party lists signifies the completion of “election by nomination”. It also informs members of public of the people who have been elected by nomination. Therefore, as stated by the Supreme Court the mandate of the IEBC comes to an end once the gazettement is complete. Any dispute arising subsequent to the gazettement is an election dispute that must be determined by the Election Court. (See Moses Mwicigi & 14 others v IEBC & 5 Others [2016] eKLR).
To grant prayer (b) of the Memorandum of Appeal is to interfere with matters that fall squarely on the Election Court and obviously this court is not sitting as an Election Court. In my considered view, this is an order that is best left to the Election Court to decide given that gazettement of the members of the County Assembly was done on 28th August 2017. I must decline to grant order (b) as requested. The Appellant has the option of filing an election petition before the Election Court to determine that issue. I make no order as to costs. Orders shall issue accordingly.
Delivered, dated and signed this 5th day of September 2017.
S. N. Mutuku
Judge