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Court of AppealStruck OutCivil Appli. NAI No. 6 of 2008 (UR. 5/2008)· [2008] KECA 127 (KLR)

Paul Kibugi Muite & 2 others v Electoral Commission of Kenya & 2 others [2008] KECA 127 (KLR)

Court of Appeal of Kenya
8 February 2008
SBS.E.O. BosireEOE.O. O'KubasuEGE.M. Githinji
2,310 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can only act on actual appeals from the High Court—it cannot freeze administrative decisions like the Electoral Commission's before an appeal is filed.

What this practically means

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Executive summary

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The applicants, officials of Safina political party, sought leave in the High Court to apply for judicial review orders of certiorari, prohibition and mandamus against the Electoral Commission of Kenya's letter of 12th January 2008 denying Safina a nominated member of parliament slot under the 1997 IPPG formula. Emukule J ruled on 17th January 2008 that prohibition could not issue because the act sought to be prohibited had already occurred, leaving certiorari as the proper remedy. Leave was effectively denied, and the applicants came to the Court of Appeal under section 3(2) of the Appellate Jurisdiction Act seeking a stay of the implementation of the Commission's decision pending an intended appeal which had not yet been filed. The Court raised suo motu the question of its own jurisdiction. It held that its jurisdiction stems from section 64(1) of the Constitution and is circumscribed by statute; it has no inherent jurisdiction, and enactments conferring jurisdiction must be strictly interpreted, as established in Anarita Karimi Njeru (No. 2) and Onyango v R. Section 3(2) must be read conjunctively with section 3(1), which donates appellate jurisdiction; section 3(2) governs only matters incidental to the hearing and determination of an appeal actually before the Court. Since no appeal had been filed, and since the decision sought to be stayed was extra-judicial and not appealable to the Court, the application was incompetent. The application was struck out with no order as to costs. The High Court's ruling was not disturbed, the application failing on jurisdictional grounds.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction under the Constitution and the Appellate Jurisdiction Act

Holding

The Court's jurisdiction is derived from the Constitution and statute; it is denied original jurisdiction and can exercise only appellate jurisdiction conferred by law. It has no inherent jurisdiction.

Reasoning

Section 64(1) of the Constitution confines the Court to jurisdiction conferred by law in relation to appeals from the High Court. Section 3(1) of the Appellate Jurisdiction Act donates the jurisdiction to hear appeals where a right of appeal exists under other law. Prior decisions of the Court and the East African Court of Appeal hold that jurisdiction-conferring enactments must be strictly construed and that the Court has no general supervisory or inherent jurisdiction. Lumumba's submission that section 3(2) enables the Court to do 'nearly everything' was rejected.

p. 4
02

Whether section 3(2) of the Appellate Jurisdiction Act can be invoked independently to grant a stay where no appeal has been filed

Holding

No. Section 3(2) must be read conjunctively with section 3(1) and applies only for purposes incidental to the hearing and determination of an appeal actually before the Court. With no appeal filed, the application is independent of an intended appeal and outside the Court's power.

Reasoning

Section 3(2) applies 'for all purposes of and incidental to the hearing and determination of any appeal'. 'Incidental' means subordinate to the main thing. Since the applicants' appeal had not been filed, it could not be heard and determined, and the only applications that may be brought independently of an appeal are those under rules 4, 5 and 39 of the Court of Appeal Rules. Section 3(2) read with rule 31 merely amplifies how appellate jurisdiction under section 3(1) is exercised.

p. 4
03

Whether a stay can issue against an extra-judicial decision

Holding

No. The decision sought to be stayed was that of the Electoral Commission, an extra-judicial decision. Appeals to the Court of Appeal lie only against decisions of the High Court, so the Court lacks jurisdiction to entertain a challenge to such a decision other than pursuant to an appeal from the High Court.

Reasoning

The stay sought was not of High Court proceedings but of the implementation of the Commission's decision of 12th January 2008. The Court distinguishes between staying High Court proceedings (possible under rule 5(2)(b)) and staying an administrative decision, which can only be dealt with pursuant to an appeal from the High Court. As no such appeal mechanism existed in this Court for the extra-judicial decision, jurisdiction was absent.

p. 4

Legal principles established

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  • The jurisdiction of the Court of Appeal is circumscribed by statute; it enjoys no inherent or general supervisory jurisdiction and may exercise only such jurisdiction and powers in relation to appeals from the High Court as are conferred on it by law
  • Section 3(2) of the Appellate Jurisdiction Act must be read conjunctively with section 3(1); it governs the manner of exercise of existing appellate jurisdiction and cannot operate independently of it or as a source of inherent jurisdiction
  • Enactments conferring jurisdiction on the Court of Appeal must be interpreted strictly
  • The Court of Appeal has no power to stay an extra-judicial decision; appeals to the Court must be against decisions of the High Court

Court orders

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  1. 1.The applicants' application is struck out with no order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53
  • Law Reform ActCap 26
  • Constitution of KenyaSection 33
  • Constitution of KenyaSection 64(1)
  • Constitution of KenyaSection 60
  • Appellate Jurisdiction ActCap 9, section 3(1)
  • Appellate Jurisdiction ActCap 9, section 3(2)
  • Appellate Jurisdiction ActCap 9, section 5
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 31
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 39
  • Court of Appeal RulesRule 74

Cases cited (2)

  • Anarita Karimi Njeru v. R. (No. 2)
    [1979] KLR 162
  • Onyango v. R.
    [1983] KLR 252
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Appl. No. 14 of 2008
Jurisdiction invoked
Section 3(2) of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya (invoked by applicants); the Court found its jurisdiction stems from section 64(1) of the Constitution and is conferred by statute

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, "Paul Kibugi Muite & 2 others v Electoral Commission of Kenya & 2 others [2008] KECA 127 (KLR)", Case Analysis (2008). Civil Appli. NAI No. 6 of 2008 (UR. 5/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/127/eng@2008-02-08

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