Judith Anyango Elizabeth Oyugi v Independent Electoral & Boundaries Commission (IEBC) & 3 others [2017] KECA 259 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a last-minute hearing notice is no hearing at all, restoring Judith Oyugi as ODM's valid county assembly nominee.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge misapplied the principles of judicial review by considering the merits of the decision of the 1st respondent instead of the process by which that decision was reached
- 2.Whether the 1st respondent denied the appellant a reasonable opportunity to be heard, contrary to the rules of natural justice and Article 47 of the Constitution and the Fair Administrative Action Act
- 3.Whether, on the merits, the appellant was at the time of her nomination a member of the 3rd respondent or an independent candidate
Key legal issues
#Scope of judicial review under Article 47 and the Fair Administrative Action Act
Judicial review now permits a limited merit review of administrative decisions, including proportionality, relevant considerations, rationality and reasonableness, but the court retains its traditional focus on the decision-making process and cannot substitute its own decision for that of the administrator.
The court relied on Article 47(1) of the Constitution and sections 4, 7 and 11 of the Fair Administrative Action Act, adopting the reasoning in Suchan Investment Limited. Sections 7(2) grounds such as proportionality, relevance of considerations, unreasonableness, irrationality and abuse of power invite assessment of the merits. However, the traditional process-focused remit remains critical, and the court must not substitute its opinion for that of the public body.
Right to a fair hearing before the IEBC Disputes Resolution Committee
The appellant was treated unfairly: she was served with a hearing notice at about 3.30pm after the application had been heard and only a ruling was reserved for 6.00pm the same evening, so the notice was a fait accompli and the resulting decision violated the audi alteram partem rule.
Both Article 47 and sections 4(3) and (4) of the Fair Administrative Action Act require prior and adequate notice and an opportunity to be heard where administrative action adversely affects a person's rights. Service effected after the hearing had concluded served no purpose. Relying on Onyango Oloo v Attorney General, a decision made in breach of natural justice is not cured by showing it would have been the same; it is null and void ab initio. The Judge also erred in substituting his own opinion for that of the public body.
Whether the appellant was an independent candidate or the ODM nominee
The earlier gazette notice of 19th May 2017 listing the appellant as an independent candidate was subsumed by subsequent events: her nomination by ODM, confirmation by ODM on two occasions, her clearance by the 1st respondent on 31st May 2017 and the gazette notice of 27th June 2017.
Under Article 85 of the Constitution and section 33 of the Elections Act an independent candidate must not be a party member, and under section 14 of the Political Parties Act resignation requires written notice to the party and notification to the Registrar. No such process was shown. Relying on Mumo Matemu, a gazette notice cannot override a statute. Less than three months had elapsed since the alleged departure, so the appellant remained the party nominee.
Legal principles established
#- Following Article 47 of the Constitution and sections 7 and 11 of the Fair Administrative Action Act, judicial review has expanded to include a limited consideration of the merits of the decision of a public body, including proportionality, relevant considerations, reasonableness and abuse of discretion, though the reviewing court may not substitute its own decision for that of the administrator
- No person can be condemned without a hearing; service of a hearing notice too late to be of any use is a nullity and renders the resulting ex parte decision a breach of the audi alteram partem rule
- A gazette notice, though an essential official record, cannot override a statute; termination of party membership must be shown to have followed the statutory and party-constitution process before an inference of resignation can be drawn
- A decision in breach of the rules of natural justice is not cured by showing the same decision would otherwise have been reached; such a decision is null and void ab initio
Court orders
#- 1.The appeal was allowed and the ruling and orders of the High Court (Makau, J.) dated 30th June 2017 were set aside
- 2.The 1st respondent was directed to gazette the name of the appellant, Judith Anyango Elizabeth Oyugi, as the nominee of the 3rd respondent for Member of the County Assembly, East Asembo, Rarieda Constituency, Siaya County
- 3.The 1st respondent was directed to revoke Kenya Gazette No. 6759 of 14th July 2017 in the Sixth Schedule, Serial No. 1467 in which the 2nd respondent was gazetted as the nominee
- 4.Each party was to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Siaya
- Judicial Review Appl. No. 2 of 2017 (Original No. 332 of 2017, Arising from Complaint No. 334 of 2017 – Nairobi)
- Jurisdiction invoked
- Appeal from the High Court under the Court of Appeal Rules; the judgment is delivered as Reasons for the Judgment of the Court under Rule 32(5) of the Court of Appeal Rules
Relief refused
#Costs of the appeal against the respondents
The court ordered each party to bear its own costs of the appeal, presumably in light of the pending general election
Costs
Each party to bear its own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This Court in a judgment rendered on 21st July, 2017 allowed the appeal lodged by the appellant challenging the decision of the High Court in Siaya H.C. Misc. Application No. 2 of 2017 by setting aside the ruling and orders made by that court on 30 th June, 2017.
We also, by that judgment, directed the 1 st respondent to gazette the name of the appellant, Judith Anyango Elizabeth Oyugi, as the nominee of the 3 rd respondent for Member of the County Assembly, East Asembo, Rarieda Constituency, Siaya County and to revoke Kenya Gazette No. 6759 of 14 th July, 2017 in the Sixth Schedule, Serial No.1467 in which the 2 nd respondent was gazetted as the latter’s nominee.
Each party was to bear its own costs of this
Ex parte orders whose effects are likely to affect a substantive right of a party who has not been heard on the dispute can only be granted in obvious cases and as a fundamental principle of justice, no person can be condemned without a hearing, the audi alteram partem rule.
Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action.
It is not to be implied that the rules of natural justice are excluded unless Parliament expressly so provides and that involves following the rules of natural justice to the degree indicated
The process of party membership termination and resignation as laid out in the preceding paragraph has to be shown to have been followed before any inference can be drawn that the member had resigned.
Issues in the judgment
#The judgment inconsistently refers to the gazette notice of 19th May 2017 by different numbers
The judgment contains an apparent internal date inconsistency: it states the 1st respondent cleared the appellant on 31st May 2017 upon receipt of two letters dated 30th May 2017 and 9th June 2017
The learned Judge's judgment as reproduced cites Gazette Notice Number 4891 of 2017 at page 2412 Number 1547 while the narrative elsewhere refers to Kenya Gazette No. 4888 of 19th May 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judith Anyango Elizabeth Oyugi v Independent Electoral & Boundaries Commission (IEBC) & 3 others [2017] KECA 259 (KLR)", Case Analysis (2017). Civil Appeal No. 214 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/259/eng@2017-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.