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Court of AppealDismissedCivil Appeal No. 150 of 1998

ALICEN J. R. CHELAITE vs DAVID MANYARA NJUKI & 2 OTHERS [1998] KECA 269 (KLR)

Court of Appeal of Kenya
16 October 1998
KWKwachPAPallOWOwuor
215 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that election petition rules remain fully valid even after Parliament amends the main election law.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal (Kwach, Pall and Owuor JJ.A) by Alicen J.R. Chelaite against a ruling of the High Court of Kenya at Nakuru (Lady Justice Aluoch) dated 2nd July 1998, in an election-related dispute in which David Manyara Njuki, Simon Ole Kerore and the Electoral Commission were respondents. The central legal question concerned the relationship between section 20(1)(a) of the National Assembly and Presidential Election Act (Cap 7) and Rule 14(1) of the National Assembly Election (Election Petition) Rules, in particular whether the amendment of section 20(1)(a) by Act No. 10 of 1997 had undermined the efficacy of Rule 14(1). The copy of the judgment reproduced contains only the separate concurrence of Owuor JA, who agreed with the lead judgments of Kwach and Pall JJ.A. He recorded that during argument he had been inclined to think there was a conflict between the statutory provision and the Rule, but on reflection and having read his brothers' judgments he was satisfied there was none. The court unanimously dismissed the appeal with costs, thereby affirming the High Court ruling. The binding proposition for lower courts is that Rule 14(1) of the Election Petition Rules remains fully effective notwithstanding the 1997 amendment of section 20(1)(a) of the Act.

Questions the Court framed

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

  1. 1.Whether there is a conflict between section 20(1)(a) of the National Assembly and Presidential Election Act (Cap 7) and Rule 14(1) of the National Assembly Election (Election Petition) Rules
  2. 2.Whether the amendment of section 20(1)(a) of the Act by Act No. 10 of 1997 affected the efficacy of Rule 14(1) of the Election Petition Rules

Key legal issues

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01

Whether the 1997 amendment of section 20(1)(a) of the National Assembly and Presidential Election Act created a conflict with, or nullified, Rule 14(1) of the National Assembly Election (Election Petition) Rules

Holding

There is no conflict between the provision and the Rule, and the Rule retains full efficacy after the amendment.

Reasoning

Owuor JA records that during argument he was inclined to think a conflict existed between section 20(1)(a) of Cap 7 and Rule 14(1) of the Election Petition Rules, but on reading the lead judgments of Kwach and Pall JJ.A he was satisfied there was none. The court therefore upheld the High Court's treatment of the Rule as effective notwithstanding the 1997 amendment, and dismissed the appeal.

p. 2

Legal principles established

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  • Rule 14(1) of the National Assembly Election (Election Petition) Rules remains effective notwithstanding the amendment of section 20(1)(a) of the National Assembly and Presidential Election Act by Act No. 10 of 1997; there is no conflict between the two provisions.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded (against the appellant)

The bench

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

KW
majority

Wrote the judgment

PA
majority

Wrote the judgment

OW
concurring

Wrote the judgment

Owuor JA wrote a short separate concurrence. He had initially inclined to the view that there was a conflict between section 20(1)(a) of the National Assembly and Presidential Election Act (Cap 7) and Rule 14(1) of the National Assembly Election (Election Petition) Rules, but on reading the draft judgments of Kwach and Pall JJ.A he was satisfied there was none, and agreed the appeal should be dismissed with costs.

I have had the advantage of reading in draft the Judgments of my brothers, Kwach and Pall JJ.A. I fully agree with them that for the reasons they have given, this appeal should be dismissed with costs.p. 2
On appeal from
High Court of Kenya at Nakuru
null
Jurisdiction invoked
First appellate jurisdiction over the High Court (ruling appealed from); specific enabling provision not stated in the judgment as reproduced.

Relief refused

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The appellant's appeal against the High Court ruling

The court found no conflict between the statutory provision and the Election Petition Rules such as would overturn the ruling below

p. 2

Costs

Appeal dismissed with costs (to the respondents).

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.

I fully agree with them that for the reasons they have given, this appeal should be dismissed with costs.
p. 2Disposition - appeal dismissed with costs
The efficacy of Rule 14(1) has not been affected by the amendment of section 20(1) (a) of the Act, introduced by Act No. 10 of 1997.
p. 2Harmony between the Act and the Election Petition Rules

Issues in the judgment

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material

The copy of the judgment reproduced contains only the concurring judgment of Owuor JA; the lead judgments of Kwach and Pall JJ.A, which contain the court's full reasoning, are not included, so the detailed holdings cannot be quoted.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "ALICEN J. R. CHELAITE vs DAVID MANYARA NJUKI & 2 OTHERS [1998] KECA 269 (KLR)", Case Analysis (1998). Civil Appeal No. 150 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/269/eng@1998-10-16

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