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Court of AppealDismissedCivil Appeal E190 of 2022· [2023] KECA 785 (KLR)

Rombo v Independent Electoral and Boundaries Commission; Ongondo (Interested Party) (Civil Appeal E190 of 2022) (23 June 2023) (Reasons) [2023] KECA 785 (KLR)

Court of Appeal of Kenya
23 June 2023
PKP. O. KiageHOH. A. OmondiFTF. Tuiyott
2,220 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that election nomination disputes must go through party mechanisms and the Political Parties Dispute Tribunal before any court case.

What this practically means

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Executive summary

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This was a unanimous decision of the Court of Appeal at Kisumu (Kiage, Omondi and Tuiyott, JJA) delivered on June 23, 2023, giving reasons for a judgment of August 3, 2022 by which the appeal was dismissed with costs. The appellant had challenged the nomination of the interested party as the ODM candidate for Member of County Assembly for West Kamagak Ward in Homa Bay County. After the ODM Appeals Tribunal allegedly nullified the interested party's nomination and issued the appellant a direct nomination certificate, the IEBC Returning Officer nonetheless cleared the interested party. The appellant's complaint to the IEBC Dispute Resolution Committee was dismissed for lack of jurisdiction, and his judicial review application in the High Court was dismissed as incompetent because he had not exhausted the prescribed appeal procedure and had not obtained leave under Order 53 of the Civil Procedure Rules. The Court of Appeal agreed with the learned Judge, holding that the dispute between a member and his party should first have gone through the party's internal mechanisms and the Political Parties Dispute Tribunal under section 40 of the Political Parties Act, as required by section 9 of the Fair Administrative Action Act. The Court rejected the appellant's excuse that the PPDT timeline had expired, emphasizing the stringent electoral calendar and the duty of diligence on contestants. Although the Court found that leave had in fact been granted, it was confined to certiorari and the application remained incompetent in any event. The High Court ruling was affirmed and the appeal dismissed with costs.

Key legal issues

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01

Exhaustion of the prescribed dispute-resolution procedure before resorting to judicial review

Holding

The High Court correctly declined jurisdiction because the appellant, whose dispute was with his own party (ODM), should have pursued the party's internal mechanisms and the Political Parties Dispute Tribunal under section 40 of the Political Parties Act before invoking the IEBC DRC or judicial review.

Reasoning

The dispute was between a party and its member and fell within the PPDT's mandate. Counsel for the appellant conceded, upon probing by the Court, that the complaint should have gone to the PPDT, blaming only lack of time. The Court held that the excuse of time was unsatisfactory because electoral timelines are stringent and demand diligence; section 9 of the Fair Administrative Action Act obliges exhaustion of available remedies unless exceptional circumstances are shown, which the appellant failed to demonstrate.

p. 4
02

Whether leave for judicial review had been properly obtained

Holding

Although the appellant was in fact granted leave, it was limited to orders of certiorari only; in any event the application remained incompetent for failure to exhaust remedies, so the appeal could not succeed on this ground.

Reasoning

The Court corrected the factual position that leave had been granted on June 29, 2022, but noted it covered only certiorari. However, this did not assist the appellant because the underlying incompetence — non-exhaustion of the PPDT route — rendered the application incompetent regardless, and the learned Judge's conclusion on competency was sound.

p. 5

Legal principles established

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  • An applicant for judicial review must first exhaust internal mechanisms for appeal or review and all remedies available under any other written law, and may only be exempted in exceptional circumstances in the interest of justice.
  • Parties to electoral disputes must be diligent and observe the strict electoral timelines, which are aimed at forestalling electoral injustice; failure to do so for want of time is not a satisfactory excuse for bypassing due process.

Court orders

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  1. 1.The appeal was dismissed
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
High Court of Kenya at Homabay
Judicial Review No. 9 of 2022
Jurisdiction invoked
First appeal against the ruling and orders of the High Court of Kenya at Homabay (K. W. Kiarie, J.) in Judicial Review No. 9 of 2022

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, "Rombo v Independent Electoral and Boundaries Commission; Ongondo (Interested Party) (Civil Appeal E190 of 2022)  (23 June 2023) (Reasons) [2023] KECA 785 (KLR)", Case Analysis (2023). Civil Appeal E190 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/785/eng@2023-06-23

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