Moses Masika Wetangula v John Koyi Waluke & 2 others [2008] KECA 64 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an election petition appeal because the record contained an uncertified order — originals don't count; certified copies are mandatory.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of an original, uncertified order in a record of appeal
Rule 85(1)(h) as amended by Legal Notice 101 of 1985 requires a certified copy of the decree or order; an original order bearing the deputy registrar's signature does not satisfy the rule
The Court compared the pre-amendment rule, which required only 'the decree or order', with the post-1985 text requiring 'a certified copy of the decree or order'. The words of the rule are plain and need no interpretation. The requirement guards against the mischief of a wrong decree or order being extracted and used on appeal. The certified copy is a primary document under rule 85(2A) and cannot be added by supplementary record.
Whether Court of Appeal Rules are ousted in election petition appeals
Only rule 81(1) is ousted by section 23(4) of the National Assembly and Presidential Elections Act; rule 85(1)(h) and the rest of the Rules still apply to election petition appeals
The Court agreed with the majority in Maitha vs Said but narrowed its scope: that case concerned the conflict between the statutory 30-day filing period and rule 81(1). Where the Act conferring the right of appeal prescribes the period, the statute prevails over subsidiary legislation. There is no suggestion in Maitha that once the appeal is filed in time, the appellant need not comply with the other Rules of the Court; to hold otherwise would produce absurdity, since no separate rules exist for such appeals.
Locus standi of a respondent without a striking-out application
Where the Court itself raises a defect in the record on its own motion, the proviso to rule 80 on striking-out applications is inapplicable; no preliminary objection or application is needed
The first respondent merely drew the Court's attention, with leave, to the uncertified order. The Court then proceeded suo motu and asked counsel to address it. Since no preliminary objection was raised and no striking-out application filed, the 30-day limit in the proviso to rule 80 and rule 101(b) did not arise. The objection was a legal point raised by the Court itself.
Legal principles established
#- Rule 85(1)(h) requires a certified copy of the decree or order in the record of appeal; an original order signed by the deputy registrar does not suffice
- In appeals from election petitions, only rule 81(1) of the Court of Appeal Rules is ousted by the statutory time limit; all other Court of Appeal Rules continue to apply
- A certified copy of the decree or order is a primary document and cannot be introduced by way of a supplementary record of appeal
- Where an Act giving a right of appeal fixes the period for lodging the appeal, that period must be complied with and the general rule on time takes a back seat
Court orders
#- 1.The appeal is struck out for incompetence
- 2.No order as to costs, the matter having proceeded on the Court's own motion
- On appeal from
- High Court of Kenya at Bungoma
- Election Petition No. 1 of 2008
- Jurisdiction invoked
- Section 3(1) of the Appellate Jurisdiction Act (Chapter 9), Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Masika Wetangula v John Koyi Waluke & 2 others [2008] KECA 64 (KLR)", Case Analysis (2008). Civil Appeal 108 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/64/eng@2008-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.