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Court of AppealDismissedCivil Appeal No. 215 of 2017

John Orwa v Orange Democratic Movement Party & 3 others [2017] KECA 281 (KLR)

Court of Appeal
29 September 2017
2,818 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed John Orwa's appeal, confirming that consent orders bind parties and that courts can only hear legal—not factual—appeals under the Political Parties Act.

What this practically means

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Executive summary

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The appellant, John Orwa, and the 3rd respondent, George Okinyi Omamba, contested the ODM nomination for Member of County Assembly, North Kanyamkago Ward, Migori County, in the run-up to the 8th August 2017 general election. The returning officer declared the 3rd respondent the winner. The appellant obtained a ruling from the Migori County ODM Elections Appeal Tribunal recommending issuance of the nomination certificate to him; the PPDT initially ordered ODM to issue him the certificate; and the IEBC Dispute Resolution Committee upheld his nomination. However, by a consent filed before the PPDT on 16th June 2017, the parties joined the 3rd respondent to the proceedings for the first time and set aside the PPDT's judgment of 18th May 2017, agreeing to a rehearing. On rehearing, the PPDT dismissed the appellant's claim, holding that he had deprived the 3rd respondent of an opportunity to be heard, and directed that the nomination certificate issue to the 3rd respondent. Musyoka, J dismissed the appellant's appeal from the PPDT. This Court, in a judgment delivered on 21st July 2017 with reasons delivered on 29th September 2017, dismissed the appeal. Relying on Flora Wasike v Destimo Wamboko, the Court held that a consent order has contractual effect and that the appellant could not resile from the consent agreeing to the joinder and rehearing. Since the IEBC decision was anchored on the set-aside PPDT judgment, it could no longer hold. The Court's mandate under Section 41(2) of the Political Parties Act is limited to points of law. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the High Court was right to uphold the decision of the PPDT rehearing and determining the nomination dispute notwithstanding the prior decisions of the Migori County ODM County Elections Appeal Tribunal and the IEBC Dispute Resolution Committee
  2. 2.Whether the PPDT had jurisdiction to hear the matter afresh after the consent order setting aside its earlier judgment of 18th May 2017
  3. 3.Whether the Court of Appeal could interfere with findings of fact under Section 41(2) of the Political Parties Act

Key legal issues

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01

Jurisdiction of the PPDT to rehear the nomination dispute after the consent order

Holding

The PPDT correctly exercised jurisdiction to rehear and determine the dispute afresh once the parties by consent set aside the earlier judgment and joined the 3rd respondent

Reasoning

The consent of 16th June 2017 set aside the PPDT judgment of 18th May 2017, on which the IEBC decision had been anchored. With that judgment gone, the IEBC decision could no longer hold. The manifest intention of the parties was to start the dispute resolution process afresh with the 3rd respondent, a directly affected person, participating. The appellant, having acquiesced in the rehearing, could not later challenge the Tribunal's jurisdiction.

p. 5
02

Binding effect of consent orders

Holding

A consent judgment or order has contractual effect and cannot be resiled from by one party

Reasoning

Following Flora Wasike v Destimo Wamboko, the court held that the consent recorded before the PPDT was contractual in effect. The appellant had agreed to the joinder of the 3rd respondent and to a rehearing, and could not turn around and allege that the PPDT lacked jurisdiction to revisit the matter.

p. 5
03

Scope of appellate mandate under Section 41(2) of the Political Parties Act

Holding

The Court of Appeal's mandate on appeals under the Political Parties Act is limited to points of law

Reasoning

Section 41(2) provides that an appeal lies from the PPDT to the High Court on points of law and facts, but to the Court of Appeal and Supreme Court only on points of law. The respondent parties relied on this to resist the appellant's invitations to examine factual questions such as the authenticity of tallying sheets, and the court accepted the limitation.

p. 4
04

Effect of setting aside an earlier judgment on subsequent decisions founded on it

Holding

The IEBC decision upholding the appellant's nomination, being anchored on the PPDT judgment of 18th May 2017, could not survive the setting aside of that judgment by consent

Reasoning

The complaint to the IEBC was based solely on the PPDT judgment of 18th May 2017, which in turn gave effect to the Migori County Tribunal decision. When the consent order set aside that judgment, the IEBC decision founded upon it fell with it, even though no separate consent was filed with the IEBC, since the parties' intention to restart the process afresh was manifest.

p. 5

Legal principles established

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  • A consent judgment or order has contractual effect and a party cannot resile from it
  • Setting aside a judgment by consent nullifies all consequential orders founded on it

Court orders

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  1. 1.Appeal dismissed (in the judgment delivered on 21st July 2017, with reasons delivered 29th September 2017)
  2. 2.Each party to bear its own costs

The bench

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

majority
William Ouko
W. OukoJA
Currently serving
majority
majority
On appeal from
High Court at Nairobi
Election Petition Appeal No. 123 of 2017
Jurisdiction invoked
Section 41(2) of the Political Parties Act, 2011 (appeal to the Court of Appeal on points of law)

Relief refused

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Appellant's appeal against the High Court judgment upholding the PPDT decision

The PPDT judgment of 18th May 2017 had been set aside by consent, so the IEBC decision anchored on it could not stand, and the PPDT had jurisdiction to rehear the dispute with the 3rd respondent participating

p. 5

Costs

Each party to bear its own costs

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 PPDT was therefore right, in our view, when it concluded that it had the mandate to re-hear and determine the dispute.
p. 5jurisdiction of PPDT to rehear after consent order
It is now settled law that a consent judgement or order has contractual effect…
p. 5binding effect of consent orders
The judgment of the PPDT given on 18th May 2017 having been set aside, the decision of the IEBC could no longer hold.
p. 5effect of setting aside a judgment on consequential decisions
It is for the foregoing reasons that this Court dismissed the appellant?s appeal in its judgment delivered on 21st July 2017.
p. 5disposition - appeal dismissed

Issues in the judgment

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minor

Typographical corruption in paragraph 25 rendering the passage partially unintelligible

minor

Date typographical error in the quoted consent order

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, "John Orwa v Orange Democratic Movement Party & 3 others [2017] KECA 281 (KLR)", Case Analysis (2017). Civil Appeal No. 215 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/281/eng@2017-09-29

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