SAID HEMED SAID v EMMANUEL KARISA MAITHA & ANOTHER [2000] KECA 89 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a party in an election petition cannot be stopped from fully arguing scrutiny issues, and courts can recall orders before they're finalized.
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 ruling of 20th May, 1999 confining the appellant to a written application on Rule 19 of the Rules improperly curtailed his right to make full submissions on scrutiny arising from the ruling of 17th May, 1999
- 2.Whether the learned judge erred in holding that he had no inherent power to reconsider or recall his orders once made
- 3.Whether rulings form part of the proceedings in an election petition
- 4.Whether the review application was res judicata
Key legal issues
#Curtailment of submissions on scrutiny
The order of 20th May, 1999 confining the appellant to a written application on Rule 19 improperly curtailed his right to make comprehensive submissions on the absence of Presiding Officers' statements.
The ruling of 17th May, 1999 had permitted submissions on aspects of scrutiny not necessarily on vote count. The later ruling of 20th May, 1999 was not consonant with it, restricting the appellant only to Rule 19. Since Regulation 34 procedure is important to the efficacy of the election and Rule 19 mandates delivery of Presiding Officers' statements, the appellant was entitled to argue all matters relating to scrutiny fully.
Inherent power to recall orders before perfection
While a judge correctly stated he had no inherent power to reconsider orders once made absent a power of review, the court retains inherent power to recall a judgment or order before it is perfected.
Relying on Raichand Lakhamshi v Assanand & Sons [1957] EA 82, adopting Re Harrison's Share Under a Settlement, the Court held that Kenyan courts, whose inherent powers are saved by section 97 of the Civil Procedure Code, possess the same inherent power as English courts to recall a judgment before it is perfected by a formal decree or order, avoiding the absurdity of a decree known to be wrong.
Whether rulings form part of the proceedings
The learned judge erred in holding that rulings do not form part of the proceedings; a ruling emanates from proceedings and is part of them.
A ruling results from an application and arguments, and therefore must be part of the proceedings. It would be erroneous to say a ruling is not part of the proceedings when it emanates from them. This finding supported the appellant's ability to seek review/correction of the two inconsistent rulings.
Res judicata objection
The res judicata objection could not be raised on appeal because the learned judge had already disallowed it as a preliminary point and no appeal was lodged against that ruling.
The respondents had lodged a notice of preliminary objection asserting the matter was res judicata and the court functus officio. The learned judge disallowed that preliminary point and directed the appellant to argue his application. Having not appealed that ruling, the respondents were precluded from re-arguing the point before the Court of Appeal.
Legal principles established
#- A court has inherent power to recall an order or judgment before it is perfected, so as to make it rhyme with the intention of the court.
- A ruling emanates from proceedings and forms part of them; it is erroneous to hold that a ruling is not part of the proceedings.
- A party must be allowed to canvass fully any relevant and germane point in the adversarial system.
- The combined effect of Regulations 22 and 34 of the Presidential and Parliamentary Elections Regulations is that ballot papers issued must be fully accounted for - used, spoilt and unused papers must tally with those originally issued.
- A party cannot re-argue on appeal a preliminary point already decided by the court below when no appeal was lodged against that ruling.
Court orders
#- 1.Appeal allowed with costs
- 2.Costs of the review application in the superior court awarded to the appellant
- 3.Mr. Kapila to file within 30 days a comprehensive application in the superior court not confined to Rule 19 of the Rules, in which all matters relating to scrutiny may be argued with such documentary analysis as he may wish
- 4.Respondents to be given sufficient time to oppose such application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the only judgment delivered, allowing the appeal against two interlocutory rulings of the election court that had curtailed the appellant's submissions on scrutiny.
I would therefore allow this appeal with costs.p. 6
- On appeal from
- High Court of Kenya
- Election Petition, Kisauni Constituency (Parliamentary election of 29th December, 1997)
- Jurisdiction invoked
- First appeal to the Court of Appeal against interlocutory rulings in an election petition under the National Assembly and Presidential Elections Act (Cap 7)
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 would therefore allow this appeal with costs. I would also award costs of the review application in the superior court to the appellant.
To leave no room for doubt I would direct that Mr. Kapila files within the next 30 days a comprehensive application in the superior court which application may not be confined only to provisions in rule 19 of the Rules and in which application Mr. Kapila can argue all matters relating to scrutiny with such documentary analysis as Mr. Kapila may wish to put forward.
there is power to recall an order before it is perfected to amend the same as to rhyme with the intention of the court.
Any ruling comes as a result of proceedings, that is, application and arguments and must therefore be a part of the proceedings.
it is equally desirable that a party aught to be allowed to canvass fully any relevant germane point he may have.
Issues in the judgment
#The coram lists three judges of appeal (Gicheru, Akiwumi & Shah) but only one judgment, signed by Shah, JA alone, appears in the record; no separate or concurring judgments by the other two judges are included.
The judgment text contains typographical corruption in the passage quoting the learned judge's ruling of 17th May, 1999, garbling the words.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAID HEMED SAID v EMMANUEL KARISA MAITHA & ANOTHER [2000] KECA 89 (KLR)", Case Analysis (2000). Civil Appeal No. 237 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/89/eng@2000-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.