Kennedy Moki v Hon. Rachel Kaki Nyamai
The bottom line
#Kenya's Court of Appeal confirmed election courts can hear nomination disputes, but the MP kept her Kitui South seat and the losing candidate must pay higher costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of an election court over pre-election nomination disputes
The Court held, after reviewing conflicting authorities, that an election court does have jurisdiction over pre-election nomination disputes where the dispute goes to eligibility and qualification to vie, but Article 88(4)(e) and Section 74(1) confer primary jurisdiction on the IEBC and PPDT whose mechanisms must first be exhausted; in this case the certificate's validity was never challenged and the issuing party was never joined, so the trial court's dismissal was affirmed.
The Court reviewed the dichotomy in case law: authorities pre- and post-2010 both ways. It adopted the principle that election is a process including nomination, and that a nomination certificate going to eligibility is an issue of substance challengeable in an election petition. However, the exhaustion principle and the finality of concluded constitutional processes (following Mary Wambui, Bichage and Mable Muruli) meant the appellant could not relitigate the nomination, especially where the conduct and results of the election itself were unchallenged.
Whether the trial court erred in capping costs at Ksh. 1,000,000/=
Partially: the cap for the 1st Respondent was on the lower side and was raised to Ksh. 2,500,000/= on cross-appeal; the cap for the 2nd and 3rd Respondents was upheld because they filed no cross-appeal.
Applying the Mbogo v Shah discretion standard, the Court surveyed comparative capping decisions in 2013 and 2017 election petitions, including Esposito Franco v Amason Kingi and Martha Wangari Karua, and concluded that Ksh. 1,000,000/= for the 1st Respondent was low. The 2nd and 3rd Respondents' failure to file a cross-appeal left the trial court's cap against them unassailable.
Legal principles established
#- An election court has jurisdiction to hear and determine a pre-election nomination dispute where the dispute goes to the eligibility and qualification of a candidate to vie, subject to finality and constitutional timelines of other competent organs.
- Article 88(4)(e) of the Constitution and Section 74(1) of the Elections Act do not oust the jurisdiction of an election court over nomination disputes that go to the root of the election.
- Where the validity of a nomination certificate was never challenged before the party, the PPDT, the High Court or any other competent forum, and the certificate-issuing party was never joined, a party cannot raise the validity of the certificate for the first time on appeal in an election petition context.
- Concluded constitutional processes in electoral matters cannot be reopened; parties cannot reopen concluded causes of action.
- A respondent who does not file a cross-appeal on costs cannot have the trial court's capping of its costs disturbed despite oral submissions.
Court orders
#- 1.The appeal is dismissed
- 2.The Cross-Appeal on costs has merit; the High Court order on costs for the 1st Respondent is set aside and the Appellant shall pay the 1st Respondent's High Court costs capped at Ksh. 2,500,000/=
- 3.The 2nd and 3rd Respondents' costs capped at Ksh. 1,000,000/= by the trial court are upheld
- 4.Save as to costs, the High Court judgment in Kitui Election Petition No. 2 of 2017 is affirmed and upheld
- 5.The Appellant shall bear the costs of the appeal
- On appeal from
- High Court of Kenya at Kitui
- Kitui Election Petition No. 2 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals to the Court of Appeal in election petitions on matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hon. Annie Wanjiku Kibeh v Hon. Clement Kungu Waibara & 1 other[2018] KECA 418 (KLR)31 Jul 2018followed
Cite this brief
#Cite this brief
Caselaw, "Kennedy Moki v Hon. Rachel Kaki Nyamai", Case Analysis (2018). Election Petition Appeal No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/553/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.