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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 196 of 2013

Fatuma Adan Kala v The Independent Electoral & Boundaries Commission, United Republican Party & Amina Abdullahi Tifow

Court of Appeal
31 January 2014
1,875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that party list disputes are decided on the documented list, and you cannot raise new facts for the first time on appeal.

What this practically means

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Executive summary

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The appellant, Fatuma Adan Kala, challenged her replacement by the 3rd respondent as URP's nominee to the Mandera County Assembly. Her complaint to IEBC's Dispute Resolution Committee - that the 3rd respondent was not a URP member and was not on the party list submitted to IEBC - was dismissed for want of evidence. Judicial review proceedings before the High Court (Mumbi Ngugi, D.S. Majanja and Weldon Korir, JJ.) were also dismissed, the High Court holding that it could not review the merits of the Committee's decision and that the non-joinder of the 3rd respondent was fatal. On appeal, the Court of Appeal (Karanja, Kiage and Gatembu Kairu, JJ.A.) examined the URP party list in the record, which showed the 3rd respondent at number 14 and the appellant at number 33, in the required order of priority, and held that the complaint that the 3rd respondent was not on the list had no foundation. The appellant's complaint then evolved during submissions into a grievance that the 3rd respondent's gender was erroneously indicated as male on the list; the Court held this was a matter of fact never raised before the Committee or the High Court and could not be entertained for the first time on appeal, particularly as counsel conceded from the bar that the 3rd respondent is female. The Court found no error in the High Court's decision and dismissed the appeal, with costs to the 1st and 3rd respondents. The judgment binds subordinate courts on the principle that new factual matters may not be raised for the first time on appeal and that judicial review concerns process, not merits.

Questions the Court framed

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

  1. 1.Whether the Committee and the High Court erred in basing their decision on a non-existent party list
  2. 2.Whether the 3rd respondent's name was on the party list submitted by URP to IEBC
  3. 3.Whether the High Court failed to analyze the evidence
  4. 4.Whether a new complaint regarding the 3rd respondent's gender could be entertained for the first time on appeal

Key legal issues

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01

Whether the 3rd respondent was on the URP party list

Holding

The party list in the record showed the 3rd respondent at number 14 and the appellant at number 33, dispelling the complaint that the 3rd respondent was not on the list

Reasoning

The record of appeal included URP's party list submitted to IEBC. On that list the 3rd respondent appeared at serial number 14, ahead of the appellant at number 33, in the required order of priority. The complaint that the 3rd respondent's name was not on the list therefore had no foundation.

p. 3
02

Whether the new gender complaint could be raised on appeal

Holding

The complaint that the 3rd respondent's gender was indicated as male was a matter of fact never raised before the Committee or High Court and could not be entertained on appeal

Reasoning

The gender complaint first emerged during counsel's submissions before the Court of Appeal. It was neither pleaded before the Committee nor the High Court. Counsel also conceded from the bar that the 3rd respondent is in fact female and the list indication was erroneous, leaving the point without substance.

p. 4
03

Scope of judicial review over IEBC Dispute Resolution Committee decisions

Holding

The High Court correctly declined to review the merits of the Committee's decision, its jurisdiction extending only to the process

Reasoning

The High Court held its jurisdiction could not extend to reviewing the merits of the Committee's decisions. The respondents maintained, and the Court of Appeal did not disturb, the position that judicial review concerns the process leading to the decision rather than its merits.

p. 2

Legal principles established

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  • A matter of fact not raised before the Committee or the High Court cannot be entertained for the first time on appeal
  • In judicial review proceedings the court is concerned with the process leading to a decision, not its merits

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant will meet the costs of the appeal for the 1st and 3rd 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
H.C. JR. No. 235 of 2013
Jurisdiction invoked
First appellate jurisdiction under the Constitution over the High Court's judicial review decision on a political party nomination dispute under Article 90 and the Elections Act

Relief refused

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Setting aside the High Court judgment upholding the 3rd respondent's nomination to the Mandera County Assembly

The record showed the 3rd respondent was on URP's party list and the appellant failed to demonstrate any error by the High Court

p. 4

Costs

The appellant will meet the costs of the appeal for the 1st and 3rd 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.

The appellant has not in any way demonstrated that the High Court erred in its decision. For those reasons, the appeal is dismissed. The appellant will meet the costs of the appeal for the 1 st and 3rd respondents.
p. 4Final orders - dismissal of appeal with costs
being a matter of fact that was never taken up either before the Committee or the High Court is not a matter we can entertain at the appellate stage.
p. 4New factual matters cannot be raised for the first time on appeal
The complaint that the name of 3rd respondent was not on the party list is therefore quickly dispelled as having no foundation.
p. 3Party list evidence disproving the nomination complaint

Issues in the judgment

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minor

Counsel's submissions transpose the serial numbers of the appellant and 3rd respondent relative to the Court's own finding

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Fatuma Adan Kala v The Independent Electoral & Boundaries Commission, United Republican Party & Amina Abdullahi Tifow", Case Analysis (2014). Civil Appeal No. 196 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/849/eng@2014-01-31

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