Karanja v Kabugi [1981] KECA 1 (KLR)
The bottom line
#Kenya's Court of Appeal ruled it can hear appeals on intermediate decisions in election petitions, even though the final election petition outcome itself cannot be appealed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to entertain an appeal from interlocutory rulings of the High Court sitting as an Election Court under section 44 of the Constitution
- 2.Whether the High Court rightly struck out the particulars supplied under paragraph 10 of the petition
- 3.Whether the High Court rightly struck out certain of the particulars supplied under paragraph 12 of the petition, and whether the High Court had power to strike out a substantive paragraph of a petition
- 4.Whether the High Court rightly ordered that the costs of the application for leave to appeal be costs in the cause
Key legal issues
#Appellate jurisdiction over interlocutory rulings of the Election Court
By a 2-1 majority, the Court of Appeal has jurisdiction to hear appeals from interlocutory orders of the High Court sitting as an Election Court, under section 66 of the Civil Procedure Act, following Mudavadi v Kibisu.
The special jurisdiction under section 44 is civil in nature; the interlocutory proceedings were expressly taken under the Civil Procedure Act and Rules, whose section 66 confers a right of appeal from orders of the High Court. The absence of an express bar on interlocutory appeals in section 44(5) cannot be construed as an express conferment, but the statutory route via section 66 suffices. Miller JA dissented, holding section 44(5) barred all appeals from determinations under that section.
Striking out particulars under paragraph 10
The appeal on paragraph 10 failed; the exercise of discretion by the Election Court in striking out the particulars was not shown to be clearly wrong.
Whether particulars should be ordered, supplied or struck out is a matter of discretion, not to be interfered with on appeal unless clearly wrong. The particulars either charged serious matters that should have been pleaded in separate paragraphs or were basic complaints covered by existing paragraphs, so the Election Court properly invoked Order VI of the Civil Procedure Rules.
Particulars of illegal practices under paragraph 12
Particulars 1, 7 and 10 were properly struck out as expressions of opinion, but the striking out of particular 8 was wrong in principle given the refusal to strike out particular 9; particular 8 was restored.
Either particulars 8 and 9 should both stand or both be struck out; the expression 'a leader of darkness and death' carries a notorious connotation and, if proved, might have affected the election result. Both particulars, if proved, are capable of being construed as a personal rather than a political attack, and a candidate is not entitled to say anything he pleases during an election contest.
Costs of the application for leave to appeal
The order that costs be costs in the cause was varied; the appellant, having succeeded on his leave application, was entitled to his costs in any event as no good reason for depriving him was apparent.
Under section 27(1) of the Civil Procedure Act costs follow the event unless the court for good reason otherwise orders. Applying Kiska v de Angelis, a successful party should not be deprived of costs unless his own conduct led to the litigation. No such reason appeared on the record.
Legal principles established
#- The Court of Appeal has jurisdiction to entertain appeals from interlocutory orders and rulings of the High Court sitting as an Election Court under section 44 of the Constitution, by virtue of section 66 of the Civil Procedure Act, even though the final determination of the petition itself is not appealable.
- An Election Court may properly invoke the Civil Procedure Rules, including Order VI rule 13, in the absence of election petition rules dealing with striking out particulars or paragraphs, and in a proper case may strike out a substantive paragraph of a petition.
- A successful party should not be deprived of his costs unless his conduct has led to litigation which might otherwise have been averted, and where no good reason is given for departing from the rule that costs follow the event, an appellate court will interfere.
Court orders
#- 1.Ground 4 of the cross-appeal on jurisdiction dismissed; the appeal declared competent
- 2.Appeal against the striking out of particulars under paragraph 10 dismissed
- 3.Particular 8 under paragraph 12 of the petition restored
- 4.Order that the costs of the application for leave to appeal be the petitioner's costs in the cause in any event
- 5.Cross-appeal dismissed with no order for costs
- 6.Appellant awarded one-third of his taxed costs of the appeal, to be paid equally by the two respondents
- 7.Certificate for two advocates
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Held that the Court of Appeal has jurisdiction to entertain appeals from interlocutory orders of the High Court sitting as an Election Court, following Mudavadi v Kibisu and relying on section 66 of the Civil Procedure Act. Dismissed the grounds on paragraph 10, restored particular 8 under paragraph 12, and varied the costs order.
I am satisfied that this appeal is competent and within this Court's jurisdiction.p. 3
Wrote the judgment
Dissented on jurisdiction: on a construction of section 44 of the Constitution, subsection (5) bars appeal from any determination of a question under that section, including interlocutory determinations, so the appeal is incompetent. Had the appeal been competent, he would have agreed with the orders proposed by Law JA.
I hold that by operation of subsection (5) the order appealed from is not subject to appeal.p. 9
Wrote the judgment
Hesitantly agreed that the Court of Appeal has jurisdiction, noting that no jurisdiction is conferred by the Constitution or Cap 7 but that section 66 of the Civil Procedure Act applies, and agreed with the orders proposed by Law JA.
I, albeit hesitantly, hold the view that the Court of Appeal has jurisdiction to entertain this matter and agree with the orders proposed by Law JA.p. 10
- On appeal from
- High Court of Kenya (sitting as an Election Court under section 44 of the Constitution)
- Election Petition No. 20 of 1979
- Jurisdiction invoked
- Section 66 of the Civil Procedure Act (Cap 21) and Rule 31 of the Court of Appeal Rules, conferring appellate jurisdiction over interlocutory orders of the High Court sitting as an Election Court under section 44 of the Constitution
Relief refused
#Striking out paragraph 10 of the petition (cross-appeal)
Shorn of its particulars the paragraph is harmless, possibly serving as an introduction to the following paragraphs
Striking out the remaining particulars 2, 3, 4, 5, 6 and 9 under paragraph 12 (cross-appeal)
Particulars 8 and 9, if proved, are capable of being construed as a personal attack and particular 9 had properly been allowed to stand
Costs
Costs of the application for leave to appeal to be the petitioner's costs in the cause in any event; no order for costs on the cross-appeal; appellant awarded one-third of his taxed costs of the appeal, to be paid equally by the two respondents, with certificate for two advocates.
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.
I am satisfied that this appeal is competent and within this Court's jurisdiction. Accordingly in my view the High Court did not err in giving leave to appeal and ground 4 of the cross-appeal fails and must be dismissed.
The question whether particulars should be ordered, or whether particulars should be supplied, or whether particulars or a substantive paragraph should be struck out, is one of discretion the exercise whereof should not be interfered with on appeal unless clearly wrong.
the guiding principle is that a successful party should not be deprived of his costs unless his conduct has led to litigation which, but for his own conduct, might have been averted.
it has succeeded to a very limited extent, and I would award the appellant one-third of his taxed costs, to be paid equally by the two respondents, and certify for two advocates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karanja v Kabugi [1981] KECA 1 (KLR)", Case Analysis (1981). Election Petition Appeal from Petition No. 20 of 1979. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/1/eng@1981-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.