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Court of AppealStruck OutCivil Appeal No. 16 of 2013 (consolidated with Civil Appeal No. 19 of 2013)· [2013] KECA 42 (KLR)

Okello & another v Independent Electoral & Boundaries Commission & 6 others [2013] KECA 42 (KLR)

Court of Appeal of Kenya
27 September 2013
RNR. N. NambuyeGKG. B. M. KariukiSKS. Gatembu KairuKMK. M'inotiAMA. K. Murgor
8,039 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled you cannot appeal mid-way election court decisions — you must wait until the petition's final judgment.

What this practically means

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Executive summary

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In a consolidated ruling delivered by a specially constituted five-judge bench, the Court of Appeal determined a common question arising from preliminary objections in two election appeals: whether the Court can entertain an appeal from an interlocutory decision of an election court. Civil Appeal No. 16 of 2013 was an appeal by Jared Odoyo Okello against a Kisumu ruling refusing scrutiny and recount in the Nyando Constituency petition; Civil Appeal No. 19 of 2013 was an appeal by Joel Omagwa Onyancha against a Kisii ruling striking out supporting affidavits but declining to strike out the Bomachoge Borabu petition. The Court held that under Article 164(3) of the 2010 Constitution its jurisdiction flows directly from the Constitution and no longer depends on statutory conferment as under the former section 64(1). Neither section 85A of the Elections Act nor section 80(3), nor Rule 35 of the Election Petition Rules, ousts that jurisdiction, Rule 35 being subsidiary legislation incapable of limiting constitutional jurisdiction. However, interpreting Article 164(3) purposively and holistically alongside Articles 87(1), 105, 140 and 159(2)(b), which entrench the timely resolution of electoral disputes, the Court held that issues arising in interlocutory determinations must be canvassed on appeal only after the final determination of the election court. The Court endorsed its prior decision in Peter Gichuki King'ara v IEBC and departed from Ferdinand Ndung'u Waititu and Benjamin Ogunyo Andama on the question of jurisdiction, while preserving their practical result. The preliminary objections were upheld and both appeals were struck out with costs to the respective respondents.

Key legal issues

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01

Whether the Court of Appeal may entertain interlocutory appeals from an election court

Holding

The Court has jurisdiction over appeals from election disputes whether final or interlocutory, but interlocutory determinations may only be raised on appeal after final judgment and decree of the election court.

Reasoning

Article 164(3) confers jurisdiction directly from the Constitution without restriction. Neither section 85A of the Elections Act nor Rule 35 of the Petition Rules ousts that jurisdiction. However, a purposive and holistic interpretation of Article 164(3) read with Articles 87(1), 105, 140 and 159(2)(b), which entrench timely resolution of electoral disputes, requires that interlocutory issues be deferred to appeal after final determination to avoid clogging the six-month timelines.

p. 10
02

Whether Rule 35 of the Election Petition Rules limits the Court's jurisdiction

Holding

Rule 35 is subsidiary legislation and cannot confer or limit constitutional jurisdiction.

Reasoning

Subsidiary legislation cannot be inconsistent with the principal statute, still less the Constitution. Jurisdiction emanates from the Constitution or statute, not from rules or regulations. The Court adopted the reasoning of the Nyeri bench in Peter Gichuki King'ara v IEBC on this point.

p. 8
03

Effect of the change from section 64(1) of the former Constitution to Article 164(3)

Holding

Under the former Constitution the Court's jurisdiction was conferred by law, whereas under the 2010 Constitution it springs directly from Article 164(3) without need of statutory conferment.

Reasoning

The different formulation is deliberate. Anarita Karimi Njeru identified two models of conferring appellate jurisdiction; the 2010 Constitution adopts the first, so the statutory-conferment requirement no longer applies, though appeals may still be reasonably regulated.

p. 8
04

Whether a preliminary objection could be raised without a formal motion

Holding

A jurisdictional preliminary objection properly raised by notice, giving opponents fair notice, does not require a formal notice of motion.

Reasoning

Applying Mukisa Biscuit and Motor Vessel Lillian S, and having regard to Article 159(1)(d), jurisdiction must be decided at the earliest opportunity; formal striking-out applications were unnecessary where unequivocal notices of preliminary objection were filed and served.

p. 7

Legal principles established

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  • The Court of Appeal has jurisdiction to hear appeals from election disputes, whether final or interlocutory, but interlocutory issues may only be canvassed on appeal after the final determination of the election court.
  • Subsidiary legislation such as Rule 35 of the Elections (Parliamentary and County Elections) Petition Rules cannot confer, expand or limit the jurisdiction of the Court of Appeal.
  • The jurisdiction of the Court of Appeal under Article 164(3) flows directly from the Constitution and no longer requires a statutory conferment as under the former Constitution.
  • A jurisdictional preliminary objection may be raised by notice without a formal notice of motion.

Court orders

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  1. 1.Preliminary objections upheld in both Civil Appeal No. 16 of 2013 and Civil Appeal No. 19 of 2013
  2. 2.Both appeals struck out with costs to the respective respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 164(3)
  • Constitution of Kenya, 2010Article 87(1)
  • Constitution of Kenya, 2010Article 105(2) and 105(3)
  • Constitution of Kenya, 2010Article 140
  • Constitution of Kenya, 2010Article 159(1)(d) and 159(2)(b)
  • Constitution of Kenya, 2010Article 259(1)
  • Constitution of Kenya, 2010Article 2(4)
  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 165(5)
  • Elections Act, 2011Section 80(3)
  • Elections Act, 2011Section 85A
  • Elections Act, 2011Section 2
  • Elections Act, 2011Section 96
  • Elections Act, 2011Section 75(1), 75(1A) and 75(2)
  • Elections Act, 2011Section 84
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 35
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 10(3)
  • Appellate Jurisdiction ActSection 2
  • Interpretations and General Provisions Act, cap 2Section 31(b)
  • National Assembly and Presidential Elections Act, cap 7 (repealed)Section 23(4)
  • Former Constitution of Kenya (repealed)Section 44(5)
  • Former Constitution of Kenya (repealed)Section 64(1)
  • Uganda Parliamentary Election ActSection 66(1)

Cases cited (16)

  • Ferdinand Ndung'u Waititu v IEBC & 8 Others
    CA No. 137 of 2013 (UR 94 of 2013) (Nairobi)
  • Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 Others
    CA No. 24 of 2013 (UR 11/13) (Kisumu)
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    SC Petition No. 4 of 2012
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others
    Civil Application No. 2 of 2011
  • In the Matter of an Application for Directions in the Nature of Habeas Corpus by Keshavlal Punja Parbat Shah
    (1955) 22 EACA 381
  • Hon Gagawala Nelson G. Wambuzi v Kenneth Lubogo
    EPA No. 0010 of 2011
  • Karanja v Kabugi and Another
    (1976-85) EA 165
  • Matiba v Moi
    (1993-2009) 1 EAGR 207
  • Moi v Matiba & 2 Others
    (2008) 1 KLR 622 [EP]
  • Peter Gichuki King'ara v IEBC & 2 Others
    CA No. 23 of 2013
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696
  • The Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Anarita Karimi Njeru v The Republic (No. 2)
    (1976-80) 1 KLR 1283
  • South Dakota v North Carolina
    192 US 268 (1940)
  • In the Matter of the Principle of Gender Representation in the National Assembly and the Senate
    SC Advisory Opinion No. 2 of 2012
  • Fitzleet Estates v Cherry
    (1971) 1 WLR 1345
On appeal from
High Court of Kenya at Kisumu
Election Petition No. 1 of 2013 (and Election Petition No. 7 of 2013, High Court at Kisii)
Jurisdiction invoked
Article 164(3) of the Constitution of Kenya, 2010 - appellate jurisdiction of the Court of Appeal over the High Court

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, "Okello & another v Independent Electoral & Boundaries Commission & 6 others [2013] KECA 42 (KLR)", Case Analysis (2013). Civil Appeal No. 16 of 2013 (consolidated with Civil Appeal No. 19 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/42/eng@2013-09-27

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