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Case Brief · caselaw.co.ke
Court of AppealOtherCivil Appeal 38 of 2010· [2010] KECA 502 (KLR)

Mwakwere Chirau Ali v Ayub Juma Mwakesi & another

Court of Appeal
4 June 2010
SBS.E.O. BosireEOE.O. O'KubasuAVAlnashir Visram
1,022 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 it can hear appeals from any election court decision, whether interim or final, regardless of its form.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Court of Appeal at Mombasa (Bosire, O'Kubasu and Visram, JJA) on a preliminary objection raised by the 1st Respondent, Ayub Juma Mwakesi, before the hearing of the Appellant's appeal against the judgment of Ibrahim, J of 5 February 2010 in Election Petition No 1 of 2008. The objection contended that the Court of Appeal had no jurisdiction to hear appeals from the High Court on the validity of election of a Member of Parliament, the 1st Respondent arguing that the High Court's decision was final because it took the form of a certificate rather than a decree, and relying on Matiba v Moi. The 2nd Respondent countered that Act No 10 of 1997 had overtaken that decision, and the Appellant invoked the National Assembly and Presidential Elections Act (cap 7). The court held that the right of appeal emanates from section 64(1) of the Constitution and is donated by section 23(4) of cap 7, which permits an appeal to the Court of Appeal from any decision of an election court, whether interlocutory or final, within thirty days. The form of the decision - order, decree or certificate - is immaterial. Sections 44 and 45 of the Constitution, on which the objection relied, had been repealed or amended and were irrelevant. The preliminary objection was dismissed with costs. By consent, the outcome of this appeal was to determine Civil Appeal No 42 of 2010, which concerned the same issues and parties. The substantive appeal was not determined in this ruling.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction over appeals from election petition decisions of the High Court

Holding

Yes. The right of appeal emanates from the Constitution (section 64(1)) and is conferred by section 23(4) of the National Assembly and Presidential Elections Act, which permits appeals from any decision of an election court, interlocutory or final.

Reasoning

The court traced jurisdiction from section 64(1) of the Constitution, which confers on the Court of Appeal such jurisdiction over appeals from the High Court as may be conferred by law. The National Assembly and Presidential Elections Act (cap 7) defines an election court as the High Court exercising jurisdiction under section 44(1) of the Constitution, and section 23(4) expressly donates appellate jurisdiction to the Court of Appeal from any election court decision. Sections 44 and 45 of the Constitution relied on by the respondent had been repealed or amended and were irrelevant. The nature of the decision (order, decree or certificate) is immaterial.

p. 2

Legal principles established

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  • The Court of Appeal has jurisdiction under section 23(4) of the National Assembly and Presidential Elections Act to hear appeals from any decision of an election court, whether interlocutory or final, and the form of the decision (order, decree or certificate) is immaterial.

Court orders

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  1. 1.The preliminary objection challenging the Court's jurisdiction is dismissed with costs
On appeal from
High Court of Kenya at Mombasa
Election Petition No 1 of 2008
Jurisdiction invoked
Section 64(1) of the (former) Constitution and section 23(4) of the National Assembly and Presidential Elections Act (cap 7)

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, "Mwakwere Chirau Ali v Ayub Juma Mwakesi & another", Case Analysis (2010). Civil Appeal 38 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/502/eng@2010-06-04

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