Matiba v Moi (Civil Application 241 of 1993) [1993] KECA 1 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that decisions about whether an election petition is valid can be appealed, even though decisions about the election's outcome cannot.
What this practically means
#Executive summary
#Key legal issues
#Scope of the non-appealability bar in section 44(5) of the Constitution
The bar applies only to determinations of questions affecting the validity of an election; the amended phrase 'whether the decision be interlocutory or final' extended the bar only to interlocutory decisions on such questions, not to matters outside section 44(1).
Section 44(1) confines the High Court's election jurisdiction to whether a person was validly elected or a seat vacant. Any question affecting validity arises from acts or omissions before or during the election up to declaration of the result. A ruling on the competency of a petition, dealing with an act of the petitioner after the result, falls outside that scope and remains appealable under the ordinary appellate provisions.
Whether the validity of an election petition is a question under section 44
It is not; section 44(1) lists exhaustively the questions the election court may determine, and the validity of the petition itself is not among them.
Neither the National Assembly and Presidential Elections Act nor the Rules made under it can add a question to those set out in the Constitution; any purported addition would be void to the extent of the inconsistency. Without a valid petition the election court would have no jurisdiction to proceed at all, so a ruling on petition validity could not sensibly be made final and non-appealable.
Dual jurisdiction of the High Court as election court and ordinary court
The High Court as election court exercises an additional jurisdiction under section 44(1) but retains its unlimited original jurisdiction under section 64(1); on issues outside section 44(1) it sheds the election-court role and its decisions are appealable.
The 'Election Court' is a statutory label for the High Court exercising jurisdiction conferred by section 44(1) of the Constitution. When confronted with an issue outside that section, such as competency of a petition, the court assumes its normal role under section 64(1), and because no written law forbids an appeal on such an issue, an appeal lies to the Court of Appeal.
Effect of the 1984 amendment to section 44(5) on earlier authorities
Mudavadi v Kibisu and Karanja v Magugu, which allowed appeals on interlocutory election-court matters, are no longer good law after the insertion of 'whether the decision be interlocutory or final', though distinguishable on the present facts.
Those decisions preceded the amendment (Act No 7 of 1984). The amendment restricted whatever appellate jurisdiction previously existed, so the earlier authorities and the Malaysian persuasive authority in Devan Nair are distinguishable on facts and law and no longer persuasive in Kenya on interlocutory questions within section 44.
Legal principles established
#- Section 44(5) of the Constitution bars appeals only from determinations of questions affecting the validity of an election; rulings on the competency or validity of the petition itself fall outside section 44(1) and are appealable to the Court of Appeal.
- Subordinate legislation (the Rules) cannot add to or subtract from the questions enumerated in section 44(4) of the Constitution.
- The High Court acting as an election court retains its unlimited original jurisdiction under section 64(1) of the Constitution for matters outside section 44(1).
- An appeal lies from every decision of the High Court to the Court of Appeal unless otherwise expressly provided.
Court orders
#- 1.The notice of motion dated 30th September 1993 seeking to strike out the respondent's notice of appeal is dismissed
- 2.An appeal in this case lies to the Court of Appeal
- 3.Costs of the application awarded to the respondent against the applicant
- 4.The Electoral Commission awarded the day's attendance costs only
- 5.Request for two counsel's costs refused
- On appeal from
- High Court of Kenya (Election Court)
- Election Petition No 27 of 1993
- Jurisdiction invoked
- Sections 10 and 44(5) of the Constitution of Kenya; rules 42(1) and 80 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matiba v Moi (Civil Application 241 of 1993) [1993] KECA 1 (KLR)", Case Analysis (1993). Civil Application (Nai) No 46 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/1/eng@1993-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.