Orange Democratic Movement (ODM) v National Treasury & 3 others [2019] KECA 708 (KLR)
The bottom line
#Kenya's Court of Appeal ordered Parliament to fund political parties by law from 2012, but refused to award ODM its exact Ksh 4.1 billion claim.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an order of mandamus can issue against the National Assembly without offending the doctrine of separation of powers
- 2.Whether the trial court erred in finding that the appellant was guilty of delay in filing suit
- 3.Whether the appellant is entitled to arrears of monies due under Section 25(1)(a) of the Political Parties Act
- 4.Whether judgment can be entered in favour of the appellant for the liquidated sum of Ksh. 4,135,903,545 in judicial review proceedings
Key legal issues
#Whether mandamus can issue against the National Assembly
Yes, where the failure is a substantive statutory illegality. Mandamus cannot issue for internal parliamentary affairs or procedural irregularities, but the failure to allocate the statutory minimum to the Political Parties Fund is such an illegality.
The court distinguished authorities barring court interference with parliamentary internal proceedings and privilege. The claim was founded on failure to allocate, appropriate and distribute monies as obligated by sections 24(1)(a) and 25(1)(a) of the Political Parties Act. Since Parliament had, by statute, fettered its own discretion by fixing the 0.3% minimum, compelling performance merely affirms the law as enacted rather than usurping the appropriation function.
Whether delay barred the claim for arrears
No. The duty under section 25(1)(a) is a continuing statutory duty with no limitation period; delay defeats equity has no application to an express statutory obligation.
The judge erred in invoking the equitable maxim because the issue was implementation and obedience to an express statutory duty. Equity cannot override an express statutory duty, and any exception must be found in the statute itself. Since the failure to allocate the 0.3% minimum was repeated in each financial year from 2012-13, it was a continuing violation and the concept of delay did not apply. The appellant is entitled to arrears from the financial year subsequent to the Act's commencement.
Whether judgment for the liquidated sum of Ksh. 4,135,903,545 could be entered in judicial review
No. Although a mandamus may enforce a statutory sum that is certain, ascertainable and undisputed, the national revenue figures here were disputed and did not correlate with the Auditor General's reports.
Judicial review is concerned with process, not merits, and is not generally concerned with liquidated claims. Mandamus commands and executes; it does not inquire and adjudicate. Where a statutory debt is ascertainable from the statute itself and indisputably due, judgment may be entered and mandamus issued, but here the revenue figures in the verifying affidavit bore no demonstrable relationship to the Auditor General's summaries, so the sum claimed was not undisputably due and owing. The appellant remains entitled to arrears computed under the statutory formula.
Appellate court's duty on a first appeal from affidavit-evidence proceedings
A first appellate court must reconsider and evaluate the affidavit evidence and draw its own conclusions, though with caution.
Guided by the classic statement of principle in Peters v Sunday Post Limited, the court stated its duty to revisit the evidence before the trial court and reach its own conclusions, subject to the caution that it is not enough that the appellate court might have reached a different conclusion. The suit had been determined on affidavit evidence and written submissions with no witnesses called.
Legal principles established
#- A judicial review order, including mandamus, can issue against the National Assembly where the challenge is founded on substantive statutory illegality or unconstitutionality, as opposed to internal parliamentary affairs or procedural irregularities.
- Where a statute imposes a mandatory duty in unambiguous terms, mandamus may issue against the National Assembly to compel performance of that duty; this does not amount to interference with the legislative process.
- There is no limitation period for enforcement of a continuing statutory duty, and equity cannot override an express statutory duty; delay is no bar where the breach is continuing.
Court orders
#- 1.Order of mandamus issued compelling the National Assembly to comply with Section 24 of the Political Parties Act by allocating and appropriating not less than 0.3% of national government revenue collected to the Political Parties Fund
- 2.Declaration that the appellant is entitled in arrears to all monies due pursuant to Section 25(1)(a) of the Political Parties Act from the 2012-13 financial year
- 3.Judgment and orders to take effect from the effective date of the Political Parties Act, 2011, namely 1st November 2011
- 4.Deputy Registrar to serve the judgment on the National Assembly, the Attorney General and the Cabinet Secretary for National Treasury within ten days and file an affidavit of service
- 5.By unanimous decision, the appeal dismissed in so far as it sought mandamus to compel payment of the specific sum of Ksh. 4,135,903,545
- 6.Each party to bear its own costs before the trial court and in this appeal
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the lead judgment of the majority allowing the appeal in part. Held that mandamus can issue against the National Assembly where the failure is a substantive statutory illegality rather than a matter of internal parliamentary procedure; that the 0.3% minimum allocation to the Political Parties Fund is mandatory; that there is no limitation period for enforcement of a continuing statutory duty so the delay finding was erroneous; and that arrears are payable from the 2012-13 financial year, but judgment cannot be entered for the disputed specific sum of Ksh. 4,135,903,545.
In totality, my re-evaluation of the afidavit evidence on record and consideration of the relevant applicable law leads me to conclude that this appeal has partial merit and to that it is hereby allowed.p. 21
Wrote the judgment
Wrote a separate judgment disagreeing with the majority. He considered the mandamus granted to be a drastic departure from the order sought, doubted whether section 24(a) of the Act imposes a mandatory duty, regarded the computation of the claimed sum as a matter of fact and evidence outside judicial review, held the claim unripe given the Constitutional and Public Finance Management Act budget process, and would have dismissed the appeal entirely.
In the premises, I would dismiss the appeal and order each party to bear its own costs.p. 28
- On appeal from
- High Court of Kenya
- Judicial Review application (Notice of Motion dated 19th January 2017)
- Jurisdiction invoked
- First appeal from the High Court exercising judicial review jurisdiction (Law Reform Act, sections 8(2) and 9, and Order 53 of the Civil Procedure Rules); no appellate jurisdiction provision expressly cited in the judgment
Relief refused
#Entry of judgment for the appellant in the sum of Ksh. 4,135,903,545
The total revenue collected by the national government was a disputed amount and the figures in the verifying affidavit did not correlate with the Auditor General's reports; judicial review is not generally concerned with liquidated claims
Mandamus against the Registrar of Political Parties
No statutory duty is imposed on the Registrar to allocate or appropriate monies into the Fund, and the Registrar had not failed to discharge her duties
Costs
Each party to bear its own costs before the trial court and in this 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.
In totality, my re-evaluation of the afidavit evidence on record and consideration of the relevant applicable law leads me to conclude that this appeal has partial merit and to that it is hereby allowed.
By judgment of the majority (Musinga & Otieno-Odek, JJ.A), the appeal partially succeeds and the judgment of the trial court dated 31st October 2017 be and is hereby varied as follows
The appellant is entitled in arrears to all monies due pursuant to Section 25 (1) (a) of the Political Parties Act from the financial year subsequent the efiective date of the Act i.e. arrears from the 201213 financial year.
This Judgment and orders shall take efiect from the efiective date of the Political Parties Act, 2011 namely, 1st November 2011.
By unanimous decision of the Court, the appeal is dismissed in so far as it relates to an order of mandamus to compel the respondents to allocate, appropriate and disburse to the appellant the specific sum of Ksh. 4,135,903,54500.
Each party to bear its own costs before the trial court and in this appeal.
However, in my view, a judicial review order including mandamus can issue when it is proven that Parliament involved itself in a substantive statutory illegality or unconstitutionality.
I find that there is a continuing failure to perform the statutory obligation and the concept of delay does not apply.
Issues in the judgment
#The coram/signature block prints 'D.K.USINGA' while the body of the judgment twice refers to 'Musinga JA'; the third judge is rendered here as D. K. Musinga on the strength of the in-text references.
The dissenting judgment of Githinji, JA quotes Section 25(1) of the Political Parties Act as distributing eighty per cent/fifteen per cent/five per cent, whereas the lead judgment quotes the same provision as ninety-five per cent/five per cent, an unexplained internal inconsistency in the text of the provision.
The final orders paragraph in the Githinji judgment contains a stray numbering sequence ('Accordingly, 2. ... 3. ... 4. (a)...'), suggesting the disposition block was mis-numbered in the official text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orange Democratic Movement (ODM) v National Treasury & 3 others [2019] KECA 708 (KLR)", Case Analysis (2019). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/708/eng@2019-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.