Hamdia Yaroi Shek Nuri v Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission
The bottom line
#No second appeal to Court of Appeal for county assembly election disputes.
What this practically means
#The Supreme Court ruled that if you lose a county assembly election case at the High Court, you cannot appeal further to the Court of Appeal. The law only allows one appeal from the magistrate's court to the High Court. This is to ensure election disputes are resolved quickly, as required by the Constitution. The Court of Appeal has no power to hear such second appeals.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the Court of Appeal has jurisdiction to hear and determine an appeal from the High Court (being a second appeal) emanating from an election of a member of a county assembly; and
- 2.If the answer to (i) above is in the affirmative, what remedies should the Court grant?
Key legal issues
#Whether the Court of Appeal has jurisdiction to hear a second appeal from the High Court in an election petition concerning a member of a county assembly.
The Court of Appeal lacks jurisdiction to hear such a second appeal because section 75(4) of the Elections Act only provides for an appeal to the High Court and is silent on a further appeal, and this silence, read together with Article 87 of the Constitution requiring timely settlement of electoral disputes, means Parliament intended the High Court to be the final court for such disputes.
The Supreme Court held that Article 164(3)(a) of the Constitution must be read together with Article 87, which mandates Parliament to enact legislation for timely settlement of electoral disputes. Sections 75(4) and 85A of the Elections Act are part of that legislative scheme. Section 75(4) provides for an appeal from the Magistrate's Court to the High Court but does not provide for a further appeal to the Court of Appeal. This silence is deliberate and intended to limit the level of appeals to ensure timely resolution. The Court of Appeal's jurisdiction in electoral matters is not derived solely from Article 164(3)(a) but also from legislation contemplated under Article 105(3). Since no legislation provides for a second appeal in county assembly election petitions, the Court of Appeal has no jurisdiction.
Whether sections 75(4) and 85A of the Elections Act are unconstitutional for limiting the Court of Appeal's jurisdiction under Article 164(3)(a) of the Constitution.
Sections 75(4) and 85A of the Elections Act are constitutional. They are not limitations on the Court of Appeal's jurisdiction but rather mechanisms for timely settlement of electoral disputes as required by Article 87 of the Constitution.
The Supreme Court reaffirmed its earlier decisions in Gatirau Peter Munya v Dickson Mwenda Kithinji and Fredrick Otieno Outa v Jared Odoyo Okello, which held that section 85A is constitutional and does not limit the Court of Appeal's jurisdiction under Article 164(3)(a). The Court reasoned that Article 87 requires Parliament to enact legislation for timely settlement of electoral disputes, and limiting the scope and level of appeals is one such mechanism. The Constitution cannot subvert itself, so what appears as a limitation of Article 164(3)(a) is actually borne out of Article 87.
Legal principles established
#- No second appeal lies to the Court of Appeal from the High Court in county assembly election petitions.
- Section 75(4) of the Elections Act only provides one appeal—from magistrate to High Court—for county assembly disputes.
- Section 85A of the Elections Act, limiting appeals to the Court of Appeal to matters of law, is constitutional.
- Article 164(3)(a) of the Constitution must be read together with Article 87, which requires timely settlement of electoral disputes.
- Parliament deliberately left out a second appeal for county assembly elections to ensure speedy resolution.
Court orders
#- 1.The Petition of Appeal dated October 26, 2018 is hereby dismissed.
- 2.The judgment of the Court of Appeal dated September 21, 2018 is hereby upheld.
- 3.Costs of this appeal shall be borne by the petitioner.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Election Petition Appeal No 27 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Remittal of the appeal to the Court of Appeal for hearing on merits
The Court of Appeal lacked jurisdiction to hear the appeal, so remittal would be futile.
Determination of the appeal on merits by the Supreme Court
The Court of Appeal lacked jurisdiction, so the Supreme Court could not take over the appeal.
Costs
Costs of this appeal shall be borne by the petitioner.
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 the absence of an express statutory provision, no second appeal lies to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of county assembly.
the statutory provision regarding the jurisdiction of the Court of Appeal, and in relation to 'matters of law only', is not a limitation to, or a restriction of the Court of Appeal's jurisdiction under article 164(3)(a).
The Petition of Appeal dated October 26, 2018 is hereby dismissed.
The judgment of the Court of Appeal dated September 21, 2018 is hereby upheld.
Costs of this appeal shall be borne by the petitioner.
Key timeline
#Practical implications
#Finality in county assembly election appeals
When handling county assembly election petitions, advise clients that the High Court is the final appellate court. Do not file a notice of appeal to the Court of Appeal in such cases, as it will be struck out for lack of jurisdiction. Focus on building a strong case at the magistrate's court level.
Election dispute timelines for county contracts
If your business deals with county governments and relies on stable leadership, note that county assembly election disputes end at the High Court. This means faster resolution of who holds office, reducing uncertainty in county-level procurement and partnership decisions.
Your appeal rights in county assembly elections
If you run for a county assembly seat and lose at the magistrate's court, you can appeal to the High Court. But that is your only appeal—you cannot go to the Court of Appeal. Plan your legal strategy accordingly and ensure your case is fully argued at the High Court level.
Frequently asked questions
#Can I appeal a High Court decision on a county assembly election in Kenya?+
No. The Supreme Court confirmed that the High Court is the final court for county assembly election disputes. You cannot appeal further to the Court of Appeal. This rule ensures quick resolution of election cases.
What is the difference between appeals for county assembly and national elections in Kenya?+
For county assembly elections, you can only appeal from the magistrate's court to the High Court. For National Assembly, Senate, or governor elections, you can appeal from the High Court to the Court of Appeal, but only on matters of law.
Why can't I appeal a county assembly election case to the Court of Appeal in Kenya?+
The Elections Act only provides for one appeal in county assembly cases—from the magistrate's court to the High Court. The Supreme Court ruled this is deliberate to ensure disputes are resolved quickly, as required by the Constitution.
Is Section 85A of the Elections Act constitutional in Kenya?+
Yes. The Supreme Court has repeatedly upheld Section 85A as constitutional. It limits appeals to the Court of Appeal to matters of law only for certain elections, which helps settle disputes quickly as required by Article 87 of the Constitution.
Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kinyanjui & 5 others v Kalunga & 12 others (Election Petition Appeal E002 of 2023 & Election Petition Appeal (Application) E002 of 2023 (Consolidated)) [2024] KECA 317 (KLR)[2024] KECA 317 (KLR)22 Mar 2024followed
- Kering v Torome & 5 others (Election Petition Appeal (Application) E078 of 2023) [2024] KECA 295 (KLR)[2024] KECA 295 (KLR)8 Mar 2024followed
- Ondari v Mangera & 2 others (Election Petition Civil Application E015 of 2024) [2024] KECA 205 (KLR)[2024] KECA 205 (KLR)29 Feb 2024
- Raindrops Limited v County Government of Kilifi (Civil Application E057 of 2021) [2024] KECA 174 (KLR)[2024] KECA 174 (KLR)23 Feb 2024followed
- Wasike v Lusenaka & another (Civil Application 85 of 2023) [2023] KECA 1368 (KLR)[2023] KECA 1368 (KLR)17 Nov 2023
- Gedi v Gedi & 2 others (Election Petition Appeal E018 of 2023) [2023] KECA 1336 (KLR)[2023] KECA 1336 (KLR)10 Nov 2023followed
- Obino v Independent Electoral & Boundaries Commission & 2 others (Election Petition Appeal E015 of 2023) [2023] KECA 1263 (KLR)[2023] KECA 1263 (KLR)24 Oct 2023followed
- Onkoba v Omwoyo & 2 others (Election Petition Appeal E014 of 2023) [2023] KECA 1262 (KLR)[2023] KECA 1262 (KLR)24 Oct 2023followed
Cite this brief
#Cite this brief
Caselaw, "Hamdia Yaroi Shek Nuri v Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission", Case Analysis (2019). Petition 38 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/6/eng@2019-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.