[2017] KECA 481 (KLR)
The Court of Appeal found that the Political Parties Disputes Tribunal had jurisdiction to hear the complaint regarding the Jubilee Party's failure to conduct nominations, in light of the amendments granting the Tribunal original and direct jurisdiction over disputes arising from party primaries. The High Court...
Source-derived case information.
- Citation
- [2017] KECA 481 (KLR)
- Parties
- Appellant: Hon. Samuel Kalii Kiminza; Respondent: Jubilee Party; Respondent: Hon. Rachael Nyamai
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 157 of 2017
- Procedural Posture
- Civil Appeal / Judgment on Second Appeal From High Court Decision
- Outcome
- appeal allowed
- Legal Topics
- Political Party Primaries, Tribunal Jurisdiction, Internal Dispute Resolution, Direct Nomination, Party Nomination Procedures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Samuel Kalii Kiminza
Appellant
Jubilee Party
Respondent
Hon. Rachael Nyamai
Respondent
Procedural Posture
Civil Appeal / Judgment on Second Appeal From High Court Decision
Legal Issues
- 1 Whether the Political Parties Disputes Tribunal had jurisdiction to hear the complaint despite alleged non-exhaustion of internal party dispute mechanisms.
- 2 Whether the direct nomination of the 2nd Respondent by the 1st Respondent was lawful and regular.
- 3 Whether the High Court erred in setting aside the Tribunal's orders for fresh nominations.
Ratio Decidendi
The Court of Appeal found that the Political Parties Disputes Tribunal had jurisdiction to hear the complaint regarding the Jubilee Party's failure to conduct nominations, in light of the amendments granting the Tribunal original and direct jurisdiction over disputes arising from party primaries. The High Court erred in holding otherwise and in setting aside the Tribunal's order for fresh nominations. The direct nomination of the 2nd Respondent was found to be irregular, and the appropriate remedy was to order the 1st Respondent to conduct fresh nominations for the position of Member of the National Assembly for Kitui South Constituency. The appeal was therefore allowed, the High Court...
Court Disposition
appeal allowed
Orders
- The appeal is allowed with costs.
- The judgment of the High Court dated 22nd May 2017 is set aside.
Full Case Text
Judgment text and source record
38 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KIHARA KARIUKI, PCA, GATEMBU & MURGOR, JJ.A.)
CIVIL APPEAL NO. 157 OF 2017
HON. SAMUEL KALII KIMINZA..........................APPELLANT
VS
JUBILEE PARTY........................................1ST RESPONDENT
HON RACHAEL NYAMAI.........................2ND RESPONDENT
(An appeal from the Judgment and Decree of the High Court
ofKenya at Nairobi(the Hon Mr. Justice Aggrey
Muchelule)dated 22ndMay 2017
in
Election Petition Appeal No. 58 of 2017)
JUDGMENT OF THE COURT
1. This is a second appeal from the initial decision of the Political Parties Disputes Tribunal (the Tribunal) arising out of the political parties primaries.
2. Briefly, the facts leading to this appeal are that the Hon. Samuel Kalii Kiminza (the Appellant), and the Hon. Rachael Nyamai (the 2nd Respondent) being members of the Jubilee Party (the 1st Respondent) were to take part in party primaries conducted for the position of Member of the National Assembly for the Kitui South Constituency. However, it would appear that no nominations for that position were conducted by the 1st Respondent. The Appellant lodged an initial complaint before the Tribunal which complaint was dismissed for the reason that the Appellant had ignored the internal dispute resolution mechanisms for the Jubilee Party. Meanwhile, the 1st Respondent directly nominated the 2nd Respondent and issued her with a Nomination Certificate.
3. The Appellant, through its advocates, wrote to the 1st Respondent on the 10th May 2017 seeking to know why the 2nd Respondent was given direct nomination, as well as why the nomination exercise did not take place. This letter did not elicit any response from the 1st Respondent, and consequently the Appellant filed another complaint at the Tribunal. The Tribunal, after hearing the complaint decided that the 1st Respondent had failed to conduct free and fair nominations and directed that a fresh nomination exercise be held.
4. The 2nd Respondent was aggrieved by the Judgment and appealed to the High Court. Muchelule J after hearing the Appeal allowed it and set aside the orders of the Tribunal. In allowing the Appeal the learned Judge held that the Appellant had not exhausted the 1st Respondent’s Internal Dispute Resolution Mechanisms and therefore the Tribunal did not have jurisdiction to hear the matter.
5. The Appellant was dissatisfied with this decision and filed an appeal before this Court relying on three grounds, namely that:-
a. The Honourable Judge erred in law in finding that the Political Parties Disputes Tribunal lacked jurisdiction to hear and determine Complaint No. 121 of 2017
b. The Honourable Judge erred in law in ignoring section 19 of the Political Parties (Amendment) (No. 2) Act, 2016 which amended section 40 (1) of the Political Parties Act, 2011 to give the Political Parties Tribunal Original and Direct Jurisdiction over disputes arising out of Party Primaries.
c. The Honourable Judge erred in law in failing to uphold the decision of the Political Parties Disputes Tribunal even after it found that the direct nomination of the 2nd Respondent by the 1st Respondent was irregular.
6. The 2nd Respondent filed a cross-appeal on the ground that the learned Judge had erred in failing to make a determination on the legality or otherwise of her direct nomination.
7. We have considered the record, the respective submissions by learned counsel and the authorities cited. Under Rule 32 (5) of this Court’s Rules, this Court is allowed, after hearing of an appeal to render its decision but reserve its reasons for such decision. Therefore, we shall give our reasons on the reserved judgment.
8. In our view, this Appeal is merited.
Accordingly, and for reasons which we shall give on the 21st July, 2017 in our reserved judgment, we hereby allow this appeal with costs, set aside the judgment of the High Court given on the 22nd May, 2017, and order the 1st Respondent to conduct fresh nominations for Member of the National Assembly for the Kitui South Constituency within the next forty eight (48) hours from 4:00 pm today the 16th June, 2017. Orders accordingly.
Dated and delivered at Nairobi this 16thday of June, 2017.
P. KIHARA KARIUKI, PCA
..................................
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb
...................................
JUDGE OF APPEAL
A. K. MURGOR
.................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR