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Court of AppealStruck OutCivil Application (Nairobi) — Rule 4 motion dated 12th May 2008, lodged 20th May 2008· [2008] KECA 55 (KLR)

Stephen Kinyanjui Mburu v Simon Rubiru Gakuha & 2 others [2008] KECA 55 (KLR)

Court of Appeal of Kenya
21 November 2008
1,891 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that the 30-day deadline to appeal an election petition is fixed by statute and cannot be extended, striking out the application.

What this practically means

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Executive summary

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This is a single-Judge decision of the Court of Appeal (Omolo, JA) under Rule 4 of the Court's Rules, arising from Election Petition No. 1 of 2003, struck out by Ransley, J on 13 July 2005. The applicant sought extension of time to file and serve his record of appeal, his first such motion having been struck out by Bosire, JA on 12 March 2008. The Judge held that Rule 4 empowers extension only of time limited by the Rules or by a court order, and that the 30-day period for filing election appeals under section 23(4) of the National Assembly and Presidential Elections Act is a statutory period which Rule 4 cannot override. Section 59 of the Interpretation and General Provisions Act (Cap 2) could not assist because the written law confers no extension power. Following Kibaki v Moi, the Judge affirmed that statutory time limits prevail over conflicting Court of Appeal Rules. He distinguished Karaba, where the record was lodged within the 30 days and only notice-of-appeal service (a Rules matter) was at issue. In the alternative, the Judge would have refused the extension on the merits: an unexplained 69-day delay, and the futility of reinstating a petition from an election long past. The motion was struck out with costs to the respondents.

Key legal issues

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01

Scope of Rule 4 jurisdiction to extend time

Holding

Extension under Rule 4 is confined to time limited by the Court of Appeal Rules or by an order of the Court or a superior court; a period fixed by statute is outside its reach

Reasoning

The Judge construed Rule 4 and held it applies only where time is limited by the Rules or by a court/superior court order. The 30-day appeal period for election petitions is fixed by section 23(4) of the National Assembly and Presidential Elections Act, not by the Rules. Rule 4 cannot oust a statutory provision, so the single Judge lacks jurisdiction to enlarge that period.

p. 2
02

Section 59 of the Interpretation and General Provisions Act (Cap 2)

Holding

Section 59 does not assist because it presupposes that the written law itself confers power to extend the prescribed time; section 23(4) confers no such power

Reasoning

Section 59 applies only where a written law prescribes a time AND gives a court or authority power to extend it. The election Act prescribes 30 days but grants no extension power, so the section cannot be invoked to import one. The applicant's resort to Rule 4 was therefore misconceived.

p. 3
03

Discretion on merits

Holding

Even assuming jurisdiction, extension would have been refused for the unexplained 69-day delay and because reinstating the petition would be futile after a subsequent general election

Reasoning

The Judge found an inordinate and unexplained 69-day delay between the striking out of the first motion and filing of the present one. Further, the applicant and his rival were no longer Members of Parliament and a general election had passed, so reinstatement of the petition would be an academic exercise in futility.

p. 3

Legal principles established

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  • Rule 4 of the Court of Appeal Rules permits extension only of time limited by the Rules or by a court order; it cannot be used to extend a statutory period fixed by the National Assembly and Presidential Elections Act
  • An appeal from a decision of an election court must be filed within thirty days of the decision, and that statutory period admits of no extension under the Court's Rules or section 59 of the Interpretation and General Provisions Act

Court orders

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  1. 1.The applicant's notice of motion dated 12th May 2008 and lodged on 20th May 2008 is struck out
  2. 2.Costs of the struck out motion awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenyageneral provisions on election petitions
  • National Assembly and Presidential Elections Act (Cap 7)section 23(4)
  • National Assembly and Presidential Elections Act (Cap 7)section 23(5)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 74(1)
  • Court of Appeal RulesRule 81(1)
  • Interpretation and General Provisions Act (Cap 2)section 59

Cases cited (3)

  • Kibaki vs. Moi
    [2003] 1 EA 115
  • Maitha vs. Hemed
    [1998] LLR 854 (AK)
  • Dickson Daniel Karaba vs. John Ngata Kariuki & Two Others
    Civil Appeal No. 125 of 2008 (unreported)
On appeal from
High Court of Kenya
Election Petition No. 1 of 2003
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application to a single Judge to extend time); no substantive jurisdiction found

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, "Stephen Kinyanjui Mburu v Simon Rubiru Gakuha & 2 others [2008] KECA 55 (KLR)", Case Analysis (2008). Civil Application (Nairobi) — Rule 4 motion dated 12th May 2008, lodged 20th May 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/55/eng@2008-11-21

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