Patrick Mweu Musimba v Richard N. Kalembe Ndile & 3 others [2013] KECA 207 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a fresh Kibwezi West election, ruling the losing applicant had no arguable appeal after consenting to the vote scrutiny.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established an arguable appeal
No - the contention that the Judge acted contrary to Rule 33(4) by ordering scrutiny in undisputed areas was unfounded, as the 2nd respondent had requested scrutiny of the entire constituency and the parties had consented to the process; even a suo moto scrutiny order would have been lawful.
The judgment below recorded that the 2nd respondent expressly sought recount, re-tally and scrutiny of votes in the entire constituency, so the Judge did not act suo moto. Further, Sections 80(1)(d) and 82(1) of the Elections Act empower the court to decide all matters without undue regard to technicalities, and the parties signed a consent before the exercise. The applicant cannot denounce an unfavourable outcome.
Whether the intended appeal was competent, being limited to matters of law under Section 85A of the Elections Act
The court declined to make definitive findings on this issue but found that on the material before it the applicant had no arguable appeal.
The 2nd respondent argued that the draft memorandum raised only questions of fact, contravening Section 85A which confines appeals to matters of law. The court eschewed definitive findings that might embarrass the bench hearing the appeal, but held itself unpersuaded that the appeal was arguable, rendering consideration of the nugatory principle unnecessary.
Whether the balance of convenience favoured the applicant
It did not; third-party candidates cleared for the by-election and the voters of Kibwezi West would be grossly prejudiced by a postponement.
Several persons not party to the intended appeal had been cleared to contest and had expended time and resources preparing for the by-election gazetted for 17th October 2013. Thousands of voters were also prepared to vote. The balance of convenience therefore tilted heavily against the applicant.
Legal principles established
#- An applicant under Rule 5(2)(b) must establish both an arguable appeal and that the appeal would be rendered nugatory absent the orders sought; the two principles are conjunctive, not disjunctive.
- The twin Rule 5(2)(b) principles are conjunctive: failure on the arguability limb alone disposes of the application without considering the nugatory limb.
- An election court may order scrutiny of votes suo moto, being empowered by Sections 80(1)(d) and 82(1) of the Elections Act, and a party who consents to a scrutiny and recount cannot later denounce the process merely because the results are unfavourable.
Court orders
#- 1.The application for injunction restraining the IEBC from conducting fresh elections in Kibwezi West Constituency pending appeal is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 1 of 2013 & 7 of 2013 (Consolidated)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mweu Musimba v Richard N. Kalembe Ndile & 3 others [2013] KECA 207 (KLR)", Case Analysis (2013). Civil Application No. NAI 231 of 2013 (UR 166/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/207/eng@2013-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.