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Supreme CourtDismissedCivil Application 23 of 2014

Hassan Nyanje Charo v Khatib Mwashetani & 3 others

Supreme Court of Kenya
8 December 2014
Mohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. Ojwang
6,833 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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An election petition filed even one day late is a nullity and cannot be revived.

What this practically means

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The Supreme Court ruled that election petitions must be filed within 28 days of results being declared. In this case, a candidate filed his petition 35 days after the declaration, making it invalid from the start. The court said the High Court had no power to extend that deadline or to rewrite election laws. Only Parliament can change the law. Any court proceedings based on a late petition are void, and the original election result stands.

Executive summary

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This ruling by a two-judge bench of the Supreme Court (Ibrahim and Ojwang, SCJJ) determined a preliminary objection in an application for review of the Court of Appeal's refusal to certify an intended appeal as one of general public importance. The 2nd and 3rd respondents objected on two grounds: that the Court lacked jurisdiction because the originating election petition was a nullity, and that the petition was filed out of time contrary to Article 87(2) of the Constitution. The applicant, Hassan Nyanje Charo, had filed Election Petition No. 9 of 2013 on 10th April 2013, challenging the Lunga Lunga Constituency election results declared on 5th/6th March 2013—35 days after declaration, outside the 28-day limit. The High Court had initially upheld the petition by purporting to 'amend' Section 76(1)(a) of the Elections Act, but the Supreme Court in the Joho case later declared that provision void ab initio. The Court upheld the preliminary objection, finding that the date of declaration was ascertainable and undisputed, and that the objection raised pure points of law. It held that the High Court lacked jurisdiction to admit a petition filed out of time, rendering all subsequent proceedings a nullity. The Court rejected the argument that the High Court had amended the statute, affirming the separation of powers. Applying the doctrine of precedent from Mary Wambui and Lisamula, the Court disallowed the review application, declared the High Court and Court of Appeal judgments null, affirmed the IEBC's declaration of results, and ordered each party to bear their own costs.

Questions the Court framed

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

  1. 1.What is the level of clarity as to the matter sought to be struck out, in the preliminary objection?
  2. 2.Is the date of declaration of election results, in the petition before the High Court, ascertainable in this case?
  3. 3.Does the preliminary objection meet the basic test signalled in the Mukisa Biscuits case?
  4. 4.Was Section 76(1)(a) of the Elections Act, 2011 amended by the Order of the High Court of 23rd May, 2013?
  5. 5.Does the Supreme Court decision in the Joho case apply in this matter?

Key legal issues

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01

Whether the preliminary objection met the test in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors [1969] EA 696.

Holding

The preliminary objection raised pure points of law—lack of jurisdiction and contravention of Article 87(2)—and the facts regarding the date of declaration of results were not genuinely disputed, thus the objection met the Mukisa Biscuits test.

Reasoning

The Court found that the objection raised two issues: lack of jurisdiction because proceedings were a nullity, and the petition was filed out of time. These crystallized into a single pure question of law: whether the Court had jurisdiction to entertain an application from a matter filed outside the 28-day timeline. The Court had already resolved that the date of declaration of results was ascertainable and not disputed, as the applicant had acknowledged it in the High Court. Therefore, the objection was a proper preliminary objection that could dispose of the matter.

p. 13
02

Whether Section 76(1)(a) of the Elections Act was amended by the High Court order of 23rd May 2013.

Holding

The High Court had no power to amend a statute enacted after the Constitution's promulgation; the separation of powers vests legislative authority in Parliament, and the judiciary's role is limited to striking down inconsistent law.

Reasoning

The Court rejected the argument that the High Court's order 'amended' Section 76(1)(a). It held that the 'reading into' approach from South African jurisprudence was not applicable to post-2010 Kenyan legislation. Under Article 2(4), any law inconsistent with the Constitution is void ab initio, and under Articles 94(1) and 159(1), legislative authority is vested in Parliament, not the courts. The High Court's order could not amend the statute, and the Joho decision correctly declared the provision void from its commencement.

p. 15
03

Whether the Supreme Court's decision in the Joho case applied to this matter.

Holding

The Joho decision applied because the election petition was filed out of time and the proceedings were still incomplete when the decision was rendered; the declaration of invalidity of Section 76(1)(a) applied retrospectively from the date of commencement of the Elections Act.

Reasoning

The Court noted that the declaration of results was made on 5th March 2013 and the petition was filed on 10th April 2013, outside the 28-day limit. The Joho case had declared Section 76(1)(a) void ab initio, and the Mary Wambui case held that this declaration applied retrospectively. Since the matter was still pending in the appellate process, no rights had crystallized, and the petition could not be sustained. The Court followed the precedent set in Mary Wambui and Lisamula.

p. 16

Legal principles established

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  • Election petitions must be filed within 28 days of result declaration; late filing makes the petition a nullity.
  • The 28-day timeline is a matter of substantive law, not a technicality that courts can overlook.
  • A court cannot amend a statute; only Parliament has legislative authority under the Constitution.
  • A preliminary objection based on lack of jurisdiction can dispose of a case if the facts are undisputed.
  • A Supreme Court decision declaring a law void applies retrospectively to pending cases.
  • All proceedings from a null petition are also nullities, including appeals.

Court orders

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  1. 1.The preliminary objection by the 2nd and 3rd respondents dated 31st July, 2014 is hereby upheld.
  2. 2.The application for review of refusal of Appellate Court certification, dated 3rd June, 2014 is hereby disallowed.
  3. 3.The determinations in the Judgments of the High Court and the Court of Appeal are declared null.
  4. 4.For the avoidance of doubt, the declaration of election results by the Independent Electoral and Boundaries Commission, in respect of the Lunga Lunga Constituency seat, is hereby affirmed.
  5. 5.The parties shall bear their own costs at the High Court, Court of Appeal and the Supreme Court, respectively.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
On appeal from
Court of Appeal
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Relief refused

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Review of the Court of Appeal's refusal to certify the intended appeal as one involving a matter of general public importance

The election petition was filed out of time, and the High Court lacked jurisdiction to admit and determine it; the proceedings were a nullity ab initio.

p. 16

Costs

The parties shall bear their own costs at the High Court, Court of Appeal and the Supreme Court, respectively.

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.

The election petition was filed out of time, and on this account, cannot be sustained. The High Court lacked jurisdiction to admit and determine it; and the proceedings before that Court were a nullity ab initio, and so are the subsequent proceedings emanating therefrom.
p. 16 Jurisdiction and nullity of proceedings filed out of time
it is to be recognized that the Supreme Court entertains no notion that the prescribed time-lines are anything but a matter of substantive law— and not a technicality.
p. 15 Nature of election petition timelines
The High Court, with respect, had no power to 'amend' Section 76(1) (a) of the Elections Act.
p. 15 Separation of powers and judicial amendment of statutes

Key timeline

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2013-03-05
Declaration of Lunga Lunga Constituency election results.
2013-04-10
Election petition filed by Hassan Nyanje Charo (35 days after declaration).
2014-07-31
Preliminary objection filed by 2nd and 3rd respondents.
2014
Supreme Court upholds preliminary objection, dismisses review, affirms election results.

Practical implications

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For lawyers

Strict compliance with election timelines is non-negotiable

Advise clients that any delay in filing an election petition, even by one day, is fatal. The court will not entertain arguments about technicalities or equitable exceptions. Ensure strict adherence to the 28-day constitutional deadline. Also note that courts cannot 'amend' statutes; only Parliament can. If a statute is unconstitutional, the remedy is a declaration of invalidity, not judicial rewriting.

For businesses

Election disputes must be filed promptly

If your business is involved in elections (e.g., as a candidate, agent, or observer), be aware that any challenge to results must be filed within 28 days of the official declaration. Failure to do so means the election outcome stands permanently. No court can revive a late petition. Plan your legal strategy well before the deadline.

For individuals

Your election challenge must be timely

If you want to challenge an election result, you must file your petition within 28 days of the results being announced. The Supreme Court has made clear that no extension is possible, even if you have a good reason for the delay. Missing the deadline means your petition is automatically invalid, and the election result is final.

Frequently asked questions

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What is the deadline to file an election petition in Kenya?+

You must file an election petition within 28 days from the date the election results are declared. This deadline is set by Article 87(2) of the Constitution and is strictly enforced. The Supreme Court has ruled that even one day late makes the petition a nullity.

Can a Kenyan court extend the 28-day deadline for election petitions?+

No. The Supreme Court has held that the 28-day timeline is a matter of substantive law, not a technicality. Courts have no power to extend it. If you file late, the court lacks jurisdiction and the petition is void from the start.

What happens if an election petition is filed late in Kenya?+

The petition is a nullity ab initio (invalid from the beginning). The High Court cannot hear it, and any proceedings that followed (including appeals) are also void. The original election results stand as declared by IEBC.

Does a Supreme Court decision on election timelines apply to cases already in court?+

Yes. When the Supreme Court declares a law void, that declaration applies retrospectively from the date the law was enacted. So if your petition was pending when the decision was made, and it was filed late, it must be dismissed.

Later judgments citing this (25)

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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, "Hassan Nyanje Charo v Khatib Mwashetani & 3 others", Case Analysis (2014). Civil Application 23 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/5/eng@2014-12-08

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