Hamisi v Tobiko & 2 others (Civil Appeal 154 of 2013) [2013] KECA 279 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can only hear appeals against final election petition judgments, not interim rulings, so the appeal was struck out.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal over interlocutory election appeals
Rule 35 of the Elections (Parliamentary and County Elections) Petition Rules 2013 confers a right of appeal only against the judgment and decree of the High Court, not against interlocutory rulings and orders; the Court therefore lacks jurisdiction to entertain this appeal
Rule 35, by its plain words, governs appeals from the 'judgment and decree' of the High Court. Applying expressio unius est exclusio alterius, had the rule-maker intended appeals from rulings and orders, it would have said so. This reading aligns with the overriding objective of expedition, the constitutional and statutory six-month timelines, and this Court's decision in Waititu, which the Ugandan Court of Appeal's parallel reasoning affirms.
Whether exclusion of interlocutory appeals offends Article 159(2)(d)
The exclusion is not a procedural technicality; jurisdiction is fundamental and Article 159(2)(d) is no panacea for the absence of a statutory right of appeal
The right to appeal goes to jurisdiction, which stands on a higher plane than procedural rules. Article 159(2)(d) cannot cure the absence of statutory conferment. The exclusion of interlocutory appeals reflects a deliberate legislative balance, proportionality and appreciation of practical realities in securing expeditious, time-bound determination of election petitions on the merits.
Threshold nature of jurisdiction
Jurisdiction must be addressed as the first order of business, and a court without jurisdiction must down tools immediately
Following The Owners of the Motor Vessel 'Lillian S' v Caltex Kenya Ltd, the Court held jurisdiction to be fundamental and overarching, best taken at inception, so that no futile proceedings are undertaken. Once the jurisdictional defect appeared, the appeal could not be considered on its merits, for such an exercise would be a nullity.
Legal principles established
#- The Court of Appeal has no jurisdiction to hear or determine appeals from interlocutory rulings and orders of the High Court sitting as an Election Court; appeals lie only from judgments and decrees of the Election Court
- No right of appeal exists absent an express donation by the Constitution, statute or other law; an intending appellant must show the law under which the right of appeal is donated
- A question of jurisdiction must be decided at the earliest opportunity and before any consideration of the merits
Court orders
#- 1.The appeal is incompetent and is struck out with costs to the respondents
- On appeal from
- High Court of Kenya, Nairobi (Election Court)
- Jurisdiction invoked
- Appellate Jurisdiction Act, Cap 9, section 3(1) read with Rule 35 of the Elections (Parliamentary and County Elections) Petition Rules 2013; Court held no right of appeal lies against interlocutory rulings in election petitions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisi v Tobiko & 2 others (Civil Appeal 154 of 2013) [2013] KECA 279 (KLR)", Case Analysis (2013). Civil Appeal (Election Petition Appeal) – Appeal from Nairobi Election Petition by Kakuta Maimai Hamisi. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/279/eng@2013-08-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.