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Court of AppealPartially AllowedCivil Application No. 131 of 1994· [1997] KECA 16 (KLR)

Daniel Toroitich Arap Moi v John Harun Mwau

Court of Appeal of Kenya
16 January 1997
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The bottom line

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Kenya's Court of Appeal confirmed that High Court decisions on presidential election petitions cannot be appealed, striking out the challenger's notice of appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Cockar CJ, Omolo and Akiwumi JA) delivered on 16 January 1997 in Civil Application No. 131 of 1994. The applicant, President Daniel Toroitich Arap Moi, sought to strike out the notice of appeal filed by John Harun Mwau, the unsuccessful petitioner in Election Petition No. 22 of 1993, in which the High Court (O'kubasu, Mbito and Mwera JJ) had on 30 May 1994 dismissed a petition challenging the validity of the President's election on the ground that his nomination papers did not comply with section 5(3)(b) of the Constitution and Regulation 12 of the Presidential and Parliamentary Election Regulations. The applicant argued that section 44(5) of the Constitution, applied through section 10(1), barred any appeal from the High Court's determination of a question whether a person was validly elected President, whether interlocutory or final. The respondent, appearing in person, advanced several arguments, including that the High Court had decided only one of several issues, that the Regulations' silence on nominations deprived the High Court of jurisdiction, and that section 123(8) of the Constitution preserved the appeal. The Court rejected each argument, holding that nomination is an integral part of the election process under sections 10 and 44, that the High Court's dismissal finally disposed of the petition, and that the Court of Appeal, being a creature of statute, has no jurisdiction where the Constitution specifically denies it. The application succeeded and the notice of appeal was struck out with costs to the applicant.

Key legal issues

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01

Whether section 44(5) of the Constitution ousts the Court of Appeal's jurisdiction over the intended appeal

Holding

It does. The High Court's decision finally disposed of the election petition challenging the validity of the President's election, and section 44(5) bars appeal from such determinations whether interlocutory or final.

Reasoning

The petition challenged the validity of the President's election on the ground that his nomination was faulty. Nomination is the initial and integral stage of the election process under sections 10 and 44. The High Court's dismissal of the petition was therefore a determination of a question under section 44, from which subsection (5) expressly removes any right of appeal, whether the decision be interlocutory or final.

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02

Whether the High Court lacked jurisdiction because the Regulations were silent on nominations

Holding

The High Court had jurisdiction; silence of the Regulations on nominations does not remove nomination as a substantive issue affecting presidential election validity under section 5(3)(b) of the Constitution.

Reasoning

Section 19 of the National Assembly and Presidential Elections Act provides that an application to determine whether a person has been validly elected President shall be made by petition and tried by an election court of three judges, which is what occurred. Nominations need not be dealt with in the Regulations to be a substantive issue under the Constitution.

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03

Whether section 123(8) of the Constitution confers appellate jurisdiction on the Court of Appeal

Holding

It does not. The Court of Appeal's competent jurisdiction is what is conferred by statute, and it has none where specifically denied by section 44(5).

Reasoning

Section 123(8) preserves judicial review of functions exercised under the Constitution but does not create a right of appeal. The word 'court' in the Interpretation and General Provisions Act means a court of competent jurisdiction, and this Court's competence is denied by section 44(5) in respect of election court determinations.

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Legal principles established

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  • The Court of Appeal is a creature of statute with only such jurisdiction as is conferred by law; it has no inherent jurisdiction
  • No appeal lies to the Court of Appeal from the final decision of the High Court in a presidential election petition, by virtue of sections 10 and 44(5) of the Constitution
  • Nomination of a presidential candidate is an integral part of the election process falling within sections 10 and 44 of the Constitution, so a challenge to nomination validity is a question under section 44
  • Where a court has no jurisdiction, it must decline to act

Court orders

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  1. 1.The respondent's notice of appeal dated and filed on 30th May 1994 is struck out
  2. 2.Costs of the application awarded to the applicant
On appeal from
High Court of Kenya at Nairobi
Election Petition No. 22 of 1993
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over interlocutory applications in intended appeals; the intended appeal was from a decision governed by sections 10 and 44(5) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Daniel Toroitich Arap Moi v John Harun Mwau", Case Analysis (1997). Civil Application No. 131 of 1994. Source: 

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