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Supreme CourtDismissedPetition 33 of 2018

Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others

Supreme Court of Kenya
8 February 2019
David Kenani MaragaD.K. MaragaMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki Ndungu
15,157 words in judgment
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·~61 min to read original · ~4 min brief

The bottom line

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Election courts cannot hear pre-election disputes unless they go to the root and you were unaware.

What this practically means

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The Supreme Court ruled that disputes about candidate nominations must be raised before the election with the IEBC or Political Parties Disputes Tribunal. If you knew about an issue and did not challenge it, you cannot use it later to overturn an election. Only if the issue is fundamental and you could not have known before can an election court consider it after the vote.

Executive summary

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The Supreme Court dismissed an appeal by Joshua Wakahora Irungu challenging the election of Ndiritu Muriithi as Governor of Laikipia County. The appeal arose from the Court of Appeal's decision upholding the High Court's dismissal of the election petition. The Supreme Court identified two main issues: whether it had jurisdiction under Article 163(4)(a) of the Constitution, and whether an election court has jurisdiction to determine pre-election disputes. On the first issue, the Court found that save for the question of jurisdiction over pre-election disputes, the appeal did not meet the constitutional threshold as it largely sought a re-evaluation of evidence. On the second issue, the Court resolved a long-standing conflict between two schools of thought. It held that the Constitution deliberately assigns pre-election disputes, including those relating to nominations, to the IEBC and the Political Parties Disputes Tribunal (PPDT), while post-election disputes are for election courts. The Court issued six guiding principles, including that all pre-election disputes must first be brought to the IEBC or PPDT; where such a dispute has been conclusively resolved, it cannot be a ground in an election petition; and a person who knew or ought to have known of the facts cannot raise the dispute in an election petition. However, an election court may exceptionally look into a pre-election dispute if it goes to the root of the election and the petitioner was not aware of the facts before the election. Applying these principles, the Court found that the petitioner knew or ought to have known of the 2nd respondent's independent candidature and failed to challenge it at the appropriate forum. The Chief Justice wrote a concurring opinion, arguing that the election court did have jurisdiction over the nomination issue as it went to the root of the election, but that even if it had assumed jurisdiction, it would have dismissed the ground on the merits. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether this court has jurisdiction to determine the Petition of Appeal
  2. 2.Whether the Election Court has jurisdiction to determine pre-election disputes

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear the appeal.

Holding

The Supreme Court held that the appeal did not meet the threshold under Article 163(4)(a) save on the issue of whether an election court has jurisdiction to determine pre-election disputes. The petitioner was re-arguing the appeal and not faulting the Court of Appeal's interpretation or application of the Constitution.

Reasoning

The Court noted that an appeal under Article 163(4)(a) must raise cogent issues of constitutional controversy. The petitioner's grounds largely sought a re-evaluation of evidence and did not demonstrate how the Court of Appeal erred in its interpretation or application of the Constitution. The only issue that properly invoked the Court's jurisdiction was the question of the election court's jurisdiction over pre-election disputes.

p. 17
02

Whether an election court has jurisdiction to determine pre-election disputes, including those relating to or arising from nominations.

Holding

The Supreme Court held that an election court is divested of jurisdiction to determine pre-election disputes, including those relating to nominations, which are reserved for the IEBC or PPDT. However, an election court may exceptionally look into a pre-election dispute if it goes to the root of the election and the petitioner was not aware or could not have been aware of the facts before the election.

Reasoning

The Court reviewed two conflicting schools of thought: the 'Divestiture School' holding that the IEBC and PPDT have exclusive jurisdiction over pre-election disputes, and the 'Preservative School' holding that an election court retains jurisdiction. The Court harmonized these views by issuing guiding principles. It held that the Constitution deliberately delimited institutional competencies, with pre-election disputes assigned to the IEBC/PPDT and post-election disputes to the election court. The Court found that the petitioner knew or ought to have known of the 2nd respondent's independent candidature and failed to challenge it at the appropriate forum, so the election court rightly declined jurisdiction.

p. 27

Legal principles established

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  • All pre-election disputes, including nominations, must first be brought to IEBC or PPDT.
  • If a pre-election dispute has been conclusively resolved, it cannot be raised in an election petition.
  • A person who knew or ought to have known of the facts cannot raise the dispute in an election petition.
  • An election court may exceptionally look into a pre-election dispute if it goes to the root of the election and the petitioner was unaware before the election.

Court orders

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  1. 1.The Petition of Appeal dated 6th September, 2018 is hereby dismissed.
  2. 2.The Judgment of the Court of Appeal dated 31st July, 2018 is hereby upheld.
  3. 3.For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of Governor for Laikipia County is hereby upheld.
  4. 4.The petitioner/appellant herein shall bear the costs of this Appeal.

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

David Kenani Maraga
concurring

Wrote the judgment

The Chief Justice concurred with the majority decision but wrote separately to express his view that the High Court, as an election court, had jurisdiction to entertain the pre-election nomination dispute regarding the 2nd respondent's eligibility to vie as an independent candidate, as it went to the root of the election. However, he found that even if the High Court had assumed jurisdiction, it would have dismissed the ground because the 2nd respondent had ceased to be a member of a political party for at least three months prior to the election.

On my part, I find that the High Court erred in declining jurisdiction to determine the issue and the Court of Appeal equally erred in affirming that High Court on that point.p. 33
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nyeri
Election Petition Appeal No. 2 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Declaration that the Laikipia Gubernatorial election was marred with irregularities and illegalities enough to vitiate the said elections

The Supreme Court found that the appeal did not meet the threshold under Article 163(4)(a) save on the issue of jurisdiction over pre-election disputes, and that the election court and Court of Appeal rightly declined jurisdiction on the nomination issue.

p. 33

Setting aside of the decisions of the High Court and Court of Appeal

The appeal was dismissed and the decisions below were upheld.

p. 34

Costs

The petitioner/appellant herein shall bear the costs of this Appeal.

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.

All pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT as the case may be in the first instance.
p. 29 Jurisdiction of election court over pre-election disputes
Where a person knew or ought to have known of the facts forming the basis of a pre-election dispute and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a petition to the election Court.
p. 30 Exhaustion of alternative dispute resolution mechanisms
In determining the validity of an election under Articles 105 of the Constitution or section 75(1) of the Elections Act, an election court may look into a pre-election dispute if it determines that such dispute goes to the root of the election and that the petitioner was not aware or could not have been aware of the facts forming the basis of that dispute before the election.
p. 30 Exceptional jurisdiction of election court
The Petition of Appeal dated 6th September, 2018 is hereby dismissed.
p. 34 Final orders
The Judgment of the Court of Appeal dated 31st July, 2018 is hereby upheld.
p. 34 Final orders
The petitioner/appellant herein shall bear the costs of this Appeal.
p. 34 Costs order

Key timeline

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2018-07-31
Court of Appeal upholds High Court dismissal of election petition against Laikipia Governor.
2018-09-06
Joshua Wakahora Irungu files Petition of Appeal to the Supreme Court.
2019
Supreme Court dismisses appeal and issues guiding principles on pre-election disputes.

Practical implications

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For lawyers

Strategy for election petitions

Lawyers must now advise clients to raise all nomination or pre-election disputes at the IEBC or PPDT before the election. Failure to do so will bar them from using those grounds in an election petition. Only if the dispute goes to the root of the election and the client was unaware of the facts before the election can it be raised later.

For businesses

Greater finality in election results

Businesses dealing with county governments can expect more stability in election outcomes. Challenges based on technical nomination issues are less likely to succeed after the election if they were not raised before. This reduces uncertainty for contracts or partnerships with elected officials.

For individuals

Act early on candidate disputes

If you suspect a candidate is not qualified, you must raise your concern with the IEBC or PPDT before the election. You cannot wait until after the election to challenge the result. This empowers voters to be proactive and ensures that election results are not overturned on grounds that could have been addressed earlier.

Frequently asked questions

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Can I challenge a candidate's nomination after the election in Kenya?+

No, unless the issue goes to the root of the election and you were unaware before the election. Otherwise, you must raise it with the IEBC or Political Parties Disputes Tribunal before the election.

What is the role of the Political Parties Disputes Tribunal in Kenya elections?+

The PPDT handles pre-election disputes like nominations. The Supreme Court confirmed that election courts cannot hear these disputes, so the PPDT is the primary forum for such challenges.

How can I overturn an election result in Kenya?+

You can file an election petition at the High Court within 28 days. But you cannot use pre-election issues like nomination problems unless you raised them before the election or they go to the root and you were unaware.

What does the Joshua Wakahora case mean for Kenyan elections?+

The Supreme Court clarified that election courts cannot hear pre-election disputes. This means election results are more stable if challenges to candidate qualifications are not made before the election.

Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others", Case Analysis (2019). Petition 33 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/54/eng@2019-02-08

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