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Court of AppealDismissedCivil Appeal No. 23 of 2013· [2013] KECA 278 (KLR)

King'ara v Independent and Boundaries Commission & 2 others (Civil Appeal 23 of 2013) [2013] KECA 278 (KLR)

Court of Appeal
10 September 2013
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
7,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled it cannot hear appeals over mid-case election decisions until the whole election petition is finished.

What this practically means

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Executive summary

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This was an interlocutory appeal against a ruling of the High Court at Nyeri (Ngaah, J.) dismissing the appellant's application for scrutiny and recount of votes in Othaya Constituency following the 4th March 2013 general elections. The sole threshold question was whether the Court of Appeal has jurisdiction to hear interlocutory appeals in Election Petitions. The respondents relied on Ferdinand Ndungu Waititu and Benjamin Ogunya Andama, where differently constituted benches held that Rule 35 of the Election Petition Rules permits no appeal from interlocutory orders. The appellant argued that jurisdiction flows from Article 164(3) of the Constitution and Section 85A of the Elections Act, and that a subsidiary rule cannot oust it. The Court held that Rule 35, being subsidiary legislation and a procedural rule, cannot confer, limit or oust jurisdiction; jurisdiction derives only from the Constitution or statute. Section 85A delineates the Court's jurisdiction over Election Petition appeals on matters of law only, and Section 80(3) confers exclusive jurisdiction on the High Court over interlocutory matters before final judgment. The Court reconciled its position with Waititu by holding that the appellate jurisdiction over interlocutory points of law is deferred and sequential, exercisable only after final judgment and decree of the High Court, at which stage all such points must be raised as grounds in the substantive appeal. The appeal was dismissed as premature, the merits not being considered, and, the jurisdictional questions being novel, each party was ordered to bear its own costs.

Key legal issues

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01

Whether Rule 35 of the Election Petition Rules confers or limits the jurisdiction of the Court of Appeal

Holding

Rule 35 is a procedural, case-management rule; being subsidiary legislation it cannot confer, limit or oust the Court's jurisdiction, which flows from Article 164(3) of the Constitution and Section 85A of the Elections Act.

Reasoning

Jurisdiction is specified only by the Constitution or statute. The Election Petition Rules are subsidiary legislation made by the Rules Committee under Section 96(1) of the Elections Act and were never tabled before Parliament. Rule 35 merely states that appeals from the judgment and decree of the High Court are governed by the Court of Appeal Rules; it is redundant and tautological and is not a jurisdictional or ouster clause.

p. 7
02

Whether the Court of Appeal may hear interlocutory appeals in Election Petitions before final judgment

Holding

The Court has a deferred and sequential jurisdiction over interlocutory points of law, exercisable only after final judgment and decree of the High Court; interlocutory appeals before that stage are premature and must be raised as grounds in the substantive appeal.

Reasoning

Section 80(3) of the Elections Act gives the High Court exclusive jurisdiction over interlocutory matters before final judgment, implementing the six-month constitutional timeline in Article 105(2). This delays but does not oust the appellate jurisdiction under Article 164(3) and Section 85A, which is an omnibus, comprehensive jurisdiction over all points of law exercised a posteriori after judgment and decree.

p. 10
03

Whether the earlier decisions in Ferdinand Ndungu Waititu and Benjamin Ogunya Andama precluded the Court from hearing the appeal

Holding

Those decisions correctly state that an aggrieved party must await final judgment, which the Court reconciled with its holding that jurisdiction is deferred, not absent. The appellant's authorities were distinguished.

Reasoning

Richard Ncharpi Leiyagu was an appeal from a final decree, not an interlocutory appeal, and in Nderitu Gachagu the jurisdiction question was neither raised nor canvassed, so no binding pronouncement was made there. The statement in Waititu that a party must await final judgment is the correct position, understood as deferred jurisdiction rather than absence of jurisdiction.

p. 9

Legal principles established

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  • Subsidiary legislation and rules of procedure cannot confer, create, establish, limit or subtract the jurisdiction of any court as established by the Constitution or statute.
  • The Court of Appeal has a deferred and sequential jurisdiction over interlocutory points of law arising in Election Petitions, exercisable only after the final judgment and decree of the High Court, and such points must be raised as grounds in the substantive appeal.
  • Passage or lapse of time cannot confer jurisdiction; jurisdiction is either present ab-initio or absent forever.
  • The definition of an Election Court in Section 2 of the Elections Act is not a jurisdictional provision, and Section 80(3) confers exclusive jurisdiction on the High Court over interlocutory matters prior to final judgment.

Court orders

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  1. 1.The appeal was dismissed for prematurity, the Court declining to determine the merits of the interlocutory grounds
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 164(3)
  • Constitution of KenyaArticle 105
  • Constitution of KenyaArticle 105(2)
  • Constitution of KenyaArticle 163(3)
  • Elections ActSection 85A
  • Elections ActSection 80(3)
  • Elections ActSection 85
  • Elections ActSection 96(1)
  • Elections ActSection 2
  • Election Petition RulesRule 35
  • Election Petition RulesRule 5(1)
  • Election Petition RulesRule 17(d) and Rule 17(2)
  • National Assembly and Presidential Elections Act (repealed), Cap 7Section 23(2)
  • Appellate Jurisdiction Act, Cap 9Section 3(1)

Cases cited (18)

  • Onyango Oloo vs Attorney General
    (1986-89) EA 456
  • Board of Education vs Rice
    (1911) AC 179
  • Ferdinand Ndungu Waititu vs Independent Electoral & Boundaries Commission & 2 Others
    (2013) eKLR
  • Benjamin Ogunya Andama vs Benjamin Andola Andayi & 2 Others
    Kisumu Civil Application No. 24 of 2013 (UR.11/13)
  • Hon. Gagawala Nelson G. Wambuzi vs Kenneth Lubogo
    Election Petition Application No. 00100 of 2011 (unreported)
  • Nderitu Gachagu vs Dr. Thuo Mathenge & 2 Others
    Nyeri Civil Appeal No. 14 of 2013
  • Richard Ncharpi Leiyagu vs IEBC & 2 Others
    Nyeri Civil Appeal No. 18 of 2013
  • Galaxy Paints Co. Ltd. vs Falcon Guards Ltd.
    EALR (2000) 2 EA 385
  • Nadarajan Chettiar vs Walauwa Mahatmee
    (1950) AC 481
  • National & Grindlays Bank Limited vs Dharamshi Vallabhji and Others
    (1966) EA 186
  • Jaffer Gulamhussein Ismail vs R
    (1963) E.A 55
  • Muiya vs Nyaga & Others
    (2003) 2 E.A. 616
  • Murage vs Macharia
    (2008) 2 KLR (EP) 244
  • Lillian 'S'
    [1989] KLR 1
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution
    Constitutional Application No. 2 of 2011
  • Samuel Kamau Macharia & another vs Kenya Commercial Bank & 2 Others
    Supreme Court Civil Appeal (Application) No. 2 of 2011
  • Somani's vs Shirinkhanu
    (1970) EA 580
  • Kakuta Maimai Hamisi vs Peris Tobiko & 2 Others
    Civil Appeal No. 154 of 2013
On appeal from
High Court of Kenya at Nyeri
High Court Election Petition No. 3 of 2013
Jurisdiction invoked
Article 164(3) of the Constitution and Section 85A of the Elections Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "King'ara v Independent and Boundaries Commission & 2 others (Civil Appeal 23 of 2013) [2013] KECA 278 (KLR)", Case Analysis (2013). Civil Appeal No. 23 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/278/eng@2013-09-10

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