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Court of AppealDismissedCivil Appeal No. 179 of 2013

Beatrice Nyaboke Oisebe v Independent Electoral and Boundaries Commission 2 others [2013] KECA 211 (KLR)

Court of Appeal of Kenya
11 October 2013
2,461 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that only a political party controls its nomination lists to IEBC, and a challenger must prove actual default to overturn a nomination.

What this practically means

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Executive summary

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The Court of Appeal (Maraga, Mwera & J. Mohammed, JJ.A) dismissed an appeal by Beatrice Nyaboke Oisebe challenging the nomination of Muslima Dida by the United Democratic Forum Party to a special seat in the Kisii County Assembly. The appellant had complained before the IEBC Nomination Disputes Resolution Committee that the 2nd respondent's name was not in UDF's list; before the High Court on judicial review she instead asserted that the 2nd respondent did not come from Kisii. The High Court (Ngugi, Majanja & Korir, JJ.) dismissed the reference with no order as to costs. On appeal, the court examined the documents and found that UDF had submitted a list to IEBC (date-stamped 22nd February 2013) showing the appellant at number 1 on the marginalized groups list and the 2nd respondent at number 1 on the gender top-up list; the appellant's rival 'First Submission' list did not state its purpose or disclose its source. Kisii County was allocated no marginalized-group slot, so the single gender top-up slot properly went to the 2nd respondent, who was duly and validly nominated. The court reiterated that it is the political party, alone, that proposes nomination lists to IEBC in order of priority, and such lists cannot be amended during the term of the assembly. The court also noted the inconsistency between the appellant's grounds before the committee and the High Court. The appeal was dismissed, with costs awarded to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Nomination Disputes Resolution Tribunal and the High Court based their decision on a non-existent party list
  2. 2.Whether the 2nd respondent's name appeared on UDF's first submission of the nominees list to IEBC
  3. 3.Whether the High Court and the Tribunal failed to analyse the evidence on record
  4. 4.Whether the High Court and the Tribunal failed to read the law so as to arrive at a just conclusion

Key legal issues

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01

Source and sanctity of party lists for nomination to special seats in county assemblies

Holding

The list submitted by UDF and received by IEBC (date-stamped 22nd February 2013) was the operative list; the 2nd respondent was properly nominated from the gender top-up slot while Kisii County received no marginalized-group slot, so the appellant could not benefit

Reasoning

The court examined the documents. The appellant's 'First Submission' list did not state the category of nomination and its source was not disclosed. The IEBC/UDF list showed the appellant on the marginalized list and the 2nd respondent on the gender top-up list. Since Kisii County had no marginalized slot, only the gender top-up slot could be filled, and it went to the 2nd respondent as UDF recommended.

p. 4
02

Whether the Tribunal and High Court failed to analyse the evidence and the law

Holding

Both organs considered the evidence and the law before them; the appellant produced no material supporting the claim that they failed to do so

Reasoning

The committee dismissed the complaint on the basis that the respondent was rightly on the list, and the High Court determined the reference after reading the pleadings and hearing submissions. Though the two decisions may not have quoted specific statutory or constitutional provisions, the import of the law, including that only political parties have the core mandate to prepare nomination lists, was clear in their decisions.

p. 5
03

Statutory framework for nomination under Section 34 of the Elections Act and Articles 90 and 177

Holding

Section 34 of the Elections Act, 2011 requires a political party nominating candidates under Article 177(1)(a) to submit a party list in accordance with Article 177(1)(b) and (c) for special seats

Reasoning

The court read Article 177(1)(b) and (c) of the Constitution as providing for special seat members necessary for the gender two-thirds rule and for members of marginalized groups. Section 34(4) of the Elections Act operationalises this by requiring the political party itself to submit the party list in order of priority to IEBC, which then allocates slots.

p. 4

Legal principles established

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  • It is the political party, and it alone, which prepares and submits the party nomination list to IEBC in order of priority, and such lists are not subject to amendment during the term of Parliament or County Assembly
  • A complaint's basis before the Nomination Disputes Resolution Committee must be consistent with the case later advanced before the High Court on judicial review

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellant to pay costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
JR Case No. 215 of 2013
Jurisdiction invoked
Appeal from the High Court in judicial review proceedings arising from nomination disputes under Article 90 and Article 177 of the Constitution and Section 74 of the Elections Act, 2011

Relief refused

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Setting aside the nomination of the 2nd respondent to the Kisii County Assembly in favour of the appellant

UDF availed a list to IEBC with the 2nd respondent for gender top-up and she was duly and validly nominated; no default in the nomination process was demonstrated

p. 4

Costs

The appellant to pay costs to the respondents

Quotable passages

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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 the result, this appeal is dismissed. The High Court dismissed the appellant’s reference with no order as to costs. But we are of the view here that the appellant do pay costs to the respondents.
p. 5Final orders and costs
In sum it is the party, and it alone, which proposes a list for party nominations which is submitted to IEBC in order of priority. Such lists are not subject to amendment during the term of Parliament or County Assembly.
p. 4Exclusive mandate of political parties over nomination lists
From the foregoing we were satisfied that UDF availed a list to IEBC for the purpose of nominations with the 2nd respondent for gender top-up. She was thus duly and validly nominated.
p. 4Validity of the 2nd respondent's nomination
the appellant had 2 different bases to present her complaint, first to the committee and then to the High Court. They had no nexus or consistency.
p. 5Consistency of grounds across forums
It was not demonstrated that there was any default in the nomination process or IEBC amended the list submitted to it, hence our conclusion that the 2nd respondent was validly nominated.
p. 4Burden on challenger to demonstrate default

Issues in the judgment

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minor

Judgment paraphrases the grounds of appeal rather than reproducing them verbatim, and quotes the committee's decision twice with slightly different wording ('the respondent is rightly on the list' vs 'the respondent was rightly on the list'), creating minor internal inconsistency in the quoted material

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Beatrice Nyaboke Oisebe v Independent Electoral and Boundaries Commission 2 others [2013] KECA 211 (KLR)", Case Analysis (2013). Civil Appeal No. 179 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/211/eng@2013-10-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.