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Court of AppealStruck OutCivil Appeal 254 of 2008· [2009] KECA 149 (KLR)

MOSES NYAMBEGA v LAWRENCE TATIYIA SEMPELE [2009] KECA 149 (KLR)

Court of Appeal of Kenya
9 October 2009
EOE. O. O'KubasuDAD. K. S. AganyanyaJNJ. G. Nyamu
1,136 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an election appeal because the appellant failed to serve the notice of appeal on everyone the outcome would affect.

What this practically means

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Executive summary

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This was an interlocutory ruling of the Court of Appeal at Nairobi delivered on 9 October 2009 by O'Kubasu, Aganyanya and Nyamu, JJA, in Civil Appeal 254 of 2008, an appeal against the decision of Ibrahim, J of the High Court at Kisii in Election Petition No. 4 of 2008 concerning the Kitutu Masaba Constituency parliamentary election. The High Court had struck out the election petition for non-service on the second respondent (the Returning Officer), with no costs on the striking-out application but costs of the petition to the respondents. Before the Court of Appeal, the court of its own motion raised the defect that not all parties from the High Court - notably the elected candidate Walter Enock Nyambati Osebe and the Electoral Commission of Kenya - had been included in or served with the appeal. Applying rule 76(1) of the Court of Appeal Rules and its earlier decision in Daniel Odindo Waga v Nabil Hassan, the court held that both omitted parties were directly affected because the outcome would adversely affect them. Counsel for the appellant sought leave to amend, but the court held that a notice of appeal is a primary document under rule 85(1) whose omission cannot be cured by a supplementary record. The appeal was declared incompetent and struck out, with no order as to costs since the issue arose on the court's own motion. The decision below was not disturbed on its merits.

Key legal issues

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01

Competency of an appeal where parties directly affected by the outcome were not served with or included in the appeal

Holding

The appeal was incompetent and was struck out because the notice of appeal was not served on the elected candidate and the Electoral Commission, both directly affected

Reasoning

Rule 76(1) of the Court of Appeal Rules requires an intending appellant to serve copies of the notice of appeal on all persons directly affected. Whether a party is directly affected is a question of fact: the winning candidate in a challenged election and the Commission whose officer issued the result would be adversely affected if the appeal succeeded. The omission went to the root of the appeal, and amendment or a supplementary record could not remedy it because the notice of appeal is a primary document under rule 85(1).

p. 2

Legal principles established

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  • An intending appellant must serve the notice of appeal on all persons directly affected by the appeal; failure to do so renders the appeal incompetent
  • The test for who is 'directly affected by the appeal' is whether the outcome of the appeal would adversely affect that party
  • A missing notice of appeal cannot be cured by filing a supplementary record of appeal

Court orders

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  1. 1.The appeal is struck out
  2. 2.No order as to costs, the matter having proceeded on the court's own motion

Authorities

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Legislation

  • National Assembly and Presidential Elections Act
  • Parliamentary and Presidential Elections Regulations - National Assembly (Election Petition) Rules
  • Election Offences Act
  • Court of Appeal Rulesrule 76(1)
  • Court of Appeal Rulesrule 85(1)

Cases cited (1)

  • Daniel Odindo Waga v Nabil Hassan
    (2009) eKLR
On appeal from
High Court of Kenya at Kisii
Election Petition No. 4 of 2008
Jurisdiction invoked
Court of Appeal Rules, rule 76(1) and rule 85(1) - jurisdiction rooted on the notice of appeal served on all persons directly affected

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, "MOSES NYAMBEGA v LAWRENCE TATIYIA SEMPELE [2009] KECA 149 (KLR)", Case Analysis (2009). Civil Appeal 254 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/149/eng@2009-10-09

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