Said Hemed Said v Emmanuel Karisa Maitha & Another
The bottom line
#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 20 May 1999 curtailing the appellant to a written application confined to rule 19 conflicted with the ruling of 17 May 1999 allowing oral submissions on aspects of scrutiny
- 2.Whether the superior court judge erred in refusing to review his conflicting rulings for error apparent on the face of the record
- 3.Whether the appellant should be allowed to file and argue a comprehensive application on matters discovered during scrutiny, including the absence of Presiding Officers' statements
Key legal issues
#Conflict between the rulings of 17 and 20 May 1999
The two rulings were not consonant; the later ruling curtailed the right of submission granted in the earlier one, justifying review.
The 17 May ruling allowed oral submissions on aspects of scrutiny not necessarily on vote count; the 20 May ruling confined counsel to a written application on rule 19 only. The court found the restriction unjustified and an error on the face of the record warranting review.
Inherent power to recall an unperfected order
The judge was right that there is no inherent power to reconsider perfected orders absent a review power, but an order may be recalled before perfection.
Relying on Raichand Lakhamshi v Assanand & Sons and Re Harrison's Share Under a Settlement, the court affirmed that Kenyan courts, via s 97 of the Civil Procedure Code, possess the inherent power of English courts to recall a judgment before it is perfected by formal decree or order.
Whether rulings form part of the proceedings
The judge erred; a ruling is a product of proceedings and is part of them.
A ruling results from an application and arguments; it cannot be said to be outside the proceedings from which it emanates. This mattered because the alleged error apparent on the face of the record had to appear in the record of proceedings, which included the rulings.
Res judicata objection to the review application
The res judicata/functus officio preliminary objection had been decided by the judge below and, no appeal having been lodged, could not be re-argued on appeal.
The respondents' notice of preliminary objection raising res judicata and functus officio was disallowed on 21 July 1999. Since no appeal was filed against that ruling, the second respondent was precluded from re-litigating the point before the Court of Appeal.
Effect of regulations 34 and 41 and rule 19 on scrutiny
The Presiding Officers' statements are essential to verify that ballot papers issued tally with those used, spoilt and returned, and their absence may go to the efficacy of the election.
Regulation 34 requires the Presiding Officer to account for ballot papers issued, used, spoilt and unused; rule 19 mandates delivery of those statements to the Election Court. The court held this procedure important when considering the efficacy of an election, so counsel could not be confined to rule 19 alone.
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 court's intention.
- A ruling emanates from proceedings and forms part of the proceedings.
- A party must be allowed to canvass fully any relevant and germane point in the adversarial system.
- Where no appeal has been filed, a judge must consider a review application notwithstanding that an appeal would otherwise lie.
Court orders
#- 1.Appeal allowed with costs
- 2.Ruling of the High Court (Hayanga J) dated 15 October 1999 set aside
- 3.Costs of the review application in the superior court awarded to the appellant
- 4.Appellant's counsel to file within 30 days a comprehensive application in the superior court not confined to rule 19, in which all matters relating to scrutiny may be argued with documentary analysis
- 5.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
Principal judgment. Held the ruling of 20 May 1999 curtailed the appellant's right to submit fully on the absence of Presiding Officers' statements; the judge erred in holding rulings form no part of the proceedings; appeal allowed with a direction to file a comprehensive application within 30 days.
I see some justification in Mr Kapila’s complaint that the order of 20/5/1999 curtails his right to fully submit on the issues arising out of the absence of the Presiding Officers’ statementsp. 3
Concurred with Shah JA and proposed the appeal be allowed in the terms of that judgment.
I have had the advantage of reading in draft what has fallen out of the lips of my learned brother, Shah, JA and have nothing useful to add save that I too would allow this appeal in the terms proposed in his judgment.p. 5
Wrote separately. Held the rulings of 17 and 20 May 1999 were conflicting, creating an error apparent on the face of the record; the judge wrongly refused the review application since no appeal had been filed; the ruling of 15 October 1999 should be set aside.
In my view, the appeal succeeds and the ruling of the learned judge of 15th October, 1999, is hereby set aside and would further order that the petitioner’s counsel should be allowed to file a formal application and to submit on matters discovered during the scrutiny.p. 6
- On appeal from
- High Court of Kenya at Mombasa
- Election Petition No. 1 of 1998
- Jurisdiction invoked
- First 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.
In my view, the appeal succeeds and the ruling of the learned judge of 15th October, 1999, is hereby set aside and would further order that the petitioner’s counsel should be allowed to file a formal application and to submit on matters discovered during the scrutiny.
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
We think therefore that the Courts in Kenya have the same inherent power as Courts in England to recall a judgment before it is perfected by a formal decree or order.
Any ruling comes as a result of proceedings, that is, application and arguments and must therefore be a part of the proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Hemed Said v Emmanuel Karisa Maitha & Another", Case Analysis (2000). Civil Appeal No. 237 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/423/eng@2000-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.