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Court of AppealDismissedCivil Appeal No. (Application) 228 of 2013· [2013] KECA 113 (KLR)

Salat v Independent Electoral and Boundaries Commission & 6 others (Civil Appeal (Application) 228 of 2013) [2013] KECA 113 (KLR)

Court of Appeal of Kenya
22 November 2013
William OukoW. OukoPKP. O. KiageJMJ. Mohammed
7,199 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to strike out an election appeal over a late-served notice of appeal, ruling that technical missteps causing no real prejudice should not kill a case.

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 Nairobi (Ouko, Kiage and J. Mohammed, JJ.A) on an application under Rules 77 and 84 of the Court of Appeal Rules, 2010 to strike out the notice of appeal and record of appeal filed by Nicholas Kiptoo Arap Korir Salat against the dismissal of his election petition for Bomet County by Muchelule, J on 19th August 2013. The applicants, being the 1st and 3rd to 8th respondents, complained that the notice of appeal was not served on them within seven days of lodgment as Rule 77(1) requires, contending it was either never served or served late with the record of appeal on 3rd September 2013. Ouko JA, writing for the majority, held that striking out is a draconian last resort; that the Court of Appeal Rules apply to election appeals via Rule 35 of the Election Petition Rules; that the four-day delay constituted substantial compliance occasioning no real prejudice compensable in costs; and that Article 159(2)(d) and the overriding objective favour sustaining rather than striking out pleadings. The application was dismissed with costs. Kiage JA dissented, holding service of the notice of appeal to be a jurisdictional, essential step incapable of being excused by the oxygen principles absent explanation or effort, and would have struck out the appeal; Mohammed JA concurred with Ouko JA. The substantive election appeal therefore survived to be heard on the merits.

Key legal issues

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01

Effect of failure to serve the notice of appeal within seven days as required by Rule 77(1)

Holding

The majority held that where the notice of appeal and record of appeal were lodged timeously, the record (containing the notice) was served within time, the delay was about four days, and no real prejudice was shown, there was substantial compliance and striking out is unjustified

Reasoning

The court reasoned that an appeal is instituted by lodging documents in the registry under Rule 82, not by serving the notice of appeal. Striking out deprives a party of a hearing and is draconian; the public has a substantial interest in the fair judicial determination of election disputes. The inconvenience to the respondents could be compensated in costs; the delay was not inordinate and there was no intentional default. Proportionality weighed heavily against striking out.

p. 7
02

Application of the overriding objective and Article 159(2)(d) to striking-out applications

Holding

Courts today strive to sustain rather than strike out pleadings on purely technical grounds, provided the default is not flagrant, deliberate and unexplained; the oxygen principle is not a magic wand but is available in proper cases

Reasoning

Tracing the paradigm shift from pre-2010 brief technical striking-out decisions, the court held that Sections 1A and 1B of the Civil Procedure Act, Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) place heavy premium on substantive justice. Rules remain tools to facilitate adjudication, and courts must weigh prejudice both ways; parties and lawyers remain enjoined to abide strictly by the rules.

03

Whether service of the notice of appeal is an essential step whose omission justifies striking out under Rule 84 (dissent of Kiage JA - not the binding ratio)

Holding

Kiage JA, dissenting, held that service of the notice of appeal is a jurisdictional and essential step under Rules 75 and 77, that the appellant made no effort and offered no explanation, and that Article 159 and the oxygen principles cannot excuse flagrant default

Reasoning

The dissent reasoned that the notice of appeal occupies a central foundational place in the architecture of the Rules; service emanates from natural justice that no party be condemned unheard or ambushed. Courts must not provide succour to parties who show scant respect for rules and timelines; the greater the importance of an appeal, the more scrupulous the compliance required. The majority, however, prevailed.

p. 9

Legal principles established

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  • Striking out pleadings or an appeal is a draconian remedy of last resort to be employed only in the clearest of cases, and procedural lapses that occasion no prejudice or miscarriage of justice should not attract that sanction
  • Where a procedural infraction causes no injurious prejudice, it should not have an invalidating effect; courts must pursue substantive justice without undue regard to technicalities under Article 159(2)(d)
  • The rules of procedure remain subservient to the Constitution and statutes; Rule 77 cannot override the constitutional and statutory vesting of appellate jurisdiction in election matters
  • The Court of Appeal Rules, including Rule 77, apply to election petition appeals by force of Rule 35 of the Elections (Parliamentary and County Elections) Petition Rules, 2013, and all appeals to the Court other than criminal appeals are civil appeals

Court orders

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  1. 1.The application dated 23rd September 2013 to strike out the notice of appeal and record of appeal is dismissed
  2. 2.Costs awarded to the applicants in the application as well as the 2nd respondent in the appeal (as stated in the majority ruling)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159 (including 159(2)(d))
  • Constitution of Kenya, 2010Article 164(3)
  • Court of Appeal Rules, 2010Rule 75
  • Court of Appeal Rules, 2010Rule 77 (including 77(1))
  • Court of Appeal Rules, 2010Rule 82 (including 82(1))
  • Court of Appeal Rules, 2010Rule 84
  • Court of Appeal Rules, 2010Rule 4
  • Elections ActSection 85A (a) and (b)
  • Elections ActSection 80(1)(d)
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 35
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 4
  • Appellate Jurisdiction ActSections 3A and 3B
  • Appellate Jurisdiction ActSection 3
  • Civil Procedure ActSections 1A and 1B
  • Supreme Court ActSection 14(6)
  • Civil Procedure Rules, 2010Order 19, Rule 3(1) and (2)

Cases cited (22)

  • Augustino Mwai v. Okumu Ndede
    Nbi Civil Appeal No. 42 of 1995
  • Joseph Kinoti v. Aniceta Ndeti
    Nbi Civil Appeal No. 130 of 1995
  • Samuel Wakaba v. Bamburi Portland Cement
    Civil Appeal No. 130 of 1995
  • Dr. Chris Nwebueze Ngige v. Peter Obi and 436 Others
    [2006] Vol. 18 WRN 33
  • Githere v. Kimungu
    [1976 - 1985] E.A. 101
  • Abdirahman Abdi also known as Abdirahman Muhumed Abdi v. Safi Petroleum Products Ltd. & 6 others
    Civil Application No. Nai. 173 of 2010
  • Abok James Odera t/a A.J. Odera & Associates v. John Patrick Machira t/a Machira & Co. Advocates
    Civil Appeal No. 161 of 1999
  • City Chemist (NB1) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli v. Orient Commercial Bank Limited
    Civil Application No. Nai 302 of 2008 (UR.199/2008)
  • Kariuki Network Limited & Another v. Daly & Figgis Advocates
    Civil Application No. Nai 293 of 2009
  • Deepak Manlal Kamani and another v. Kenya Anti-Corruption and 3 others
    Civil Application No. 152 of 2009
  • Dorcas Indombi Wasike v. Benson Wamalwa
    Eldoret Civil Application No. 87 of 2004
  • Hunter Trading Company Limited v. ELF Oil Kenya Limited
    Civil Application No. Nai 6 of 2010 (UR3 (2010)
  • Caltex Oil Limited v. Evanson Wanjihia
    Civil Application No. Nai 190 of 2009 (UR)
  • Kenya Commercial Bank v. Kenya Planters Co-operative Union
    Nai Civil Application No. 85 of 2010 (UR) 62 of 2010
  • Joseph Kiangoi v. Waruru Wachira & 2 others
    Civil Appeal (Application) No. 130/2008; [2010] eKLR
  • Ayub Murumba Kakai v. Town Clerk of Webuye County Council
    Civil Appeal No. 107 of 2009
  • Peter Gichuki Kingara v. IEBC & 2 Others
    Civil Appeal No. 23 of 2013 - Nyeri
  • Ferdinard N. Waititu v. IEBC & 8 Others
    Civil Appl. 137 of 2013
  • Shabbir Ali Josab v. Anaar Osman Gamrai
    Civil Appl. 1 of 2013
  • Dishon Ochieng v. S.D.A. Church, Kodiaga
    Civil Appeal (Application) No. 333 of 2010
  • Ramji Devji Vekaria v. Joseph Oyula
    Eldoret Civil Appeal (Application) No. 154 of 2010
  • City Chemist (NBI) & Anor v. Oriental Commercial Bank
    Civil Appl. Nai 30-2 of 2008
On appeal from
High Court of Kenya
HC Election Petition No. 1 of 2013
Jurisdiction invoked
Rule 84 of the Court of Appeal Rules, 2010 (application to strike out); appellate jurisdiction from an election petition under Section 85A of the Elections Act and Article 164(3) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Salat v Independent Electoral and Boundaries Commission & 6 others (Civil Appeal (Application) 228 of 2013) [2013] KECA 113 (KLR)", Case Analysis (2013). Civil Appeal No. (Application) 228 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/113/eng@2013-11-22

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