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Court of AppealDismissedCivil Appeal No. 12 of 2018· [2018] KECA 3 (KLR)

Aden Noor Ali v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 3 (KLR)

Court of Appeal
19 June 2018
10,044 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed Aden Noor Ali's challenge, confirming political parties can freely define special interest categories for nominated seats.

What this practically means

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Executive summary

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The appellant, Aden Noor Ali, a Jubilee Party member listed ninth on its party list, challenged the nomination and gazettement of the 3rd respondent, Jeniffer Shamalla, to a special seat in the National Assembly as representative of minorities/marginalized groups. He argued that the IEBC and the Jubilee Party defied a PPDT order of 29th July 2017 which had nullified the original list and directed reconstitution, and that the party unlawfully invented a new category of "minority mixed heritage (Asian African)" after submitting its list. The High Court (S.N. Mutuku, J.) dismissed the petition on 19th December 2017, declaring the nomination valid. On appeal, the Court of Appeal first confirmed its jurisdiction under Article 164(3)(a) of the Constitution and section 85A of the Elections Act, the grounds raising matters of law. It then held that the nomination process assigns distinct roles: the political party chooses and submits a compliant party list, while the IEBC only reviews it for compliance. The PPDT order required reconstitution and specification of the 3rd respondent's special interest, not her exclusion; the list was duly reconstituted and resubmitted. Absent legislation under Article 100 defining special interest categories, political parties remain free to define their own categories, so specifying "minorities mixed heritage (Asian African)" was lawful, as was amending the list pursuant to the PPDT order. No law prioritises one special interest category over another, and gender alternation under Article 90(2)(b) meant the fourth position had to go to a female. The dispute was properly an election petition, not a constitutional petition or an appeal from the PPDT, and no extraneous matters were considered. Costs under section 84 of the Elections Act were mandatory; the capped award of Kshs.1,000,000 each was upheld. The appeal was dismissed with costs to the appellant.

Key legal issues

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01

Whether the Court of Appeal had jurisdiction over the appeal under section 85A of the Elections Act limiting election appeals to matters of law

Holding

The Court had jurisdiction because the complaints concerned the interpretation and alleged violation of constitutional and statutory provisions governing party lists, which are matters of law.

Reasoning

Jurisdiction is conferred by the Constitution and statute. Article 164(3)(a) donates constitutional mandate to hear appeals from the High Court, and section 85A of the Elections Act governs election appeals. Applying the Munya framework from the Supreme Court, a matter of law includes interpretation or construction of legal provisions and the application of law to facts. The appellant's grounds were all about interpretation and alleged violations of the Constitution and the Elections Act.

p. 5
02

Whether the 3rd respondent was validly nominated to represent the minority/marginalized special interest

Holding

The nomination was valid. The party's separate role of preparing the list and the IEBC's compliance-review role were both discharged, and the reconstituted list validly specified the 3rd respondent's category.

Reasoning

The nomination process carves out distinct roles: the political party chooses and submits a compliant party list, while the IEBC reviews it for compliance and may only require amendment or reject it. The Jubilee Party reconstituted its list as ordered by the PPDT, specifying the 3rd respondent's special interest as minority mixed heritage (Asian African), and the IEBC found it compliant and gazetted her. The PPDT order did not require her exclusion once the special interest was specified.

p. 10
03

Whether political parties may define special interest categories absent defining legislation

Holding

Yes. Until Parliament enacts Article 100 legislation defining special interest categories, political parties are free to define and select the categories under which they nominate representatives.

Reasoning

Article 97(1)(c) and Article 100 contemplate special interests including youth, persons with disabilities, workers, minorities and marginalized communities, but no legislation defines the categories or criteria. The Court endorsed the election court's view that this leaves political parties to define categories within the confines of the law. Nothing prohibited the Jubilee Party from specifying minorities mixed heritage (Asian African) as a special interest category.

p. 10
04

Whether the party list could be amended after submission to the IEBC

Holding

Yes, because the PPDT ordered reconstitution and resubmission, the Jubilee Party was compelled and entitled to adjust the list notwithstanding prior submission.

Reasoning

The PPDT ordered the party list to be reconstituted and the Jubilee Party could not have resubmitted it to the IEBC without adjusting it. By virtue of that order the party was allowed to amend the list after submission, and nothing estopped it from doing so to specify the 3rd respondent's category. Once the reconstituted compliant list was submitted it became a new list open to complaints by aggrieved parties.

p. 10
05

Whether the election court determined an election petition or an appeal from the PPDT, and took account of extraneous matters

Holding

The election court properly determined an election petition, did not take extraneous matters into account, and did not adjudicate an appeal from the PPDT.

Reasoning

Following Mwicigi and Cheperenge, any contest to an election, including election by nomination, is by way of election petition; here it was properly filed in the High Court under Rule 6(1)(a) of the Election Petition Rules 2017. The judgment shows the judge sat as an election court; the PPDT decision was referenced only on compliance with its orders. The ODM list was used only comparatively, and the party's pleadings were expressly not adopted in evidence.

p. 11
06

Whether costs were properly awarded despite public-interest constitutional questions

Holding

Costs were properly awarded. The suit was an election petition, so section 84 mandatorily required costs to follow the cause, and the capping at Kshs.1,000,000 each was reasonable.

Reasoning

Although weighty constitutional questions and public interest elements existed, that did not transform the election petition into a constitutional petition or preclude the mandatory costs regime. Section 84 provides costs shall follow the cause, and per Karua the election court's discretion is confined to fairness and quantum. The capped award of Kshs.1,000,000 each to the IEBC and the 3rd respondent was reasonable and the Court declined to interfere.

p. 12

Legal principles established

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  • The choice of nominees in a party list is the sole prerogative of the political party; the IEBC's role is limited to reviewing the list for legal compliance and it has no power to amend it or select candidates.
  • Until Parliament enacts legislation under Article 100 defining special interest categories and nomination criteria, political parties remain at liberty to identify and select their own special interest categories for nomination.
  • Neither the Constitution nor the electoral statutes prioritise any category of special interest over others in the ranking of party lists; lists must simply alternate between male and female candidates in order of priority.
  • A dispute over a nomination to a special seat in the National Assembly is challengeable only by way of election petition in the High Court, not as an appeal from the PPDT or as a constitutional petition.
  • An election court has no discretion whether to award costs in an election petition; costs must follow the cause under section 84 of the Elections Act, with discretion lying only as to quantum.

Court orders

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  1. 1.This appeal has no merit and is hereby dismissed.
  2. 2.The order by the election court for payment of the 1st and 3rd respondents costs capped at Ksh.1,000,000/= each be and is hereby upheld.
  3. 3.The appellant shall bear the costs of this appeal.
On appeal from
High Court of Kenya at Milimani (sitting as an election court)
Election Petition Appeal No. 11 of 2017
Jurisdiction invoked
Article 164(3)(a) of the Constitution and Section 85A of the Elections Act (appeals from the High Court sitting as an election court, limited to matters of law)

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, "Aden Noor Ali v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 3 (KLR)", Case Analysis (2018). Civil Appeal No. 12 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/3/eng@2018-06-19

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