Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 others [2013] KECA 280 (KLR)
The bottom line
#Kenya's Court of Appeal ruled it cannot hear appeals on interim decisions in election petitions — only final judgments can be appealed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to hear interlocutory appeals from election courts
The Court of Appeal has no jurisdiction over interlocutory appeals or interlocutory applications in election petition matters; Section 80(3) of the Elections Act confines interlocutory matters to the Election Court and Rule 35 confines appeals to judgments and decrees.
The 2010 Constitution and the Elections Act 2011 departed deliberately from Section 23(4) of the retired National Assembly and Presidential Elections Act, which expressly allowed appeals from interlocutory and final decisions. Article 105(2) imposes a six-month limit on hearing petitions, and Article 87(1) requires timely settlement of electoral disputes. Parliament implemented these by confining interlocutory matters to the Election Court, and the Court of Appeal is not an Election Court. The departure cannot be read as inadvertent.
Meaning of Rule 35 of the Election Petition Rules
Rule 35, which governs appeals from 'judgment and decree' by the Court of Appeal Rules, does not extend to interlocutory rulings or orders, and 'decree' cannot include orders; the words should be read as applying the Court of Appeal Rules only 'so far as applicable'.
The Court compared Rule 35 with Section 23(4) of the retired Act and with Ugandan Rules 28 and 29, which likewise confine appeals to judgments. The overriding objective of the Election Petition Rules - just, expeditious, proportionate and affordable resolution - supports the restrictive reading because entertaining interlocutory appeals would defeat the six-month constitutional timeline.
Appealability of orders striking out an election petition
An order striking out an election petition is a final decision, so an appeal from such an order properly lies to the Court of Appeal.
The Court carved out an exception: where the High Court allows an application striking out a petition, the petition is terminated and the appeal is no longer interlocutory but an appeal on a final decision. This exception was not engaged here because the order under challenge struck out a supplementary petition and refused scrutiny, not the petition itself.
Consequences of want of jurisdiction
Once a court concludes it lacks jurisdiction, it must down tools; the Court sustained the preliminary objection, struck out the motion and did not consider the remaining grounds of the preliminary objection.
Relying on The Owners of Motor Vessel Lillian S v Caltex Oil Kenya Ltd and the Supreme Court's decision in Samwel Kamau Macharia v Kenya Commercial Bank, the Court held that jurisdiction flows only from the Constitution or legislation and cannot be expanded by judicial craft. Since the intended appeal was itself interlocutory and non-existent in jurisdictional terms, a stay pending it would be futile.
Legal principles established
#- The Court of Appeal has no jurisdiction to hear interlocutory appeals, or interlocutory applications connected thereto, from decisions on interlocutory applications in High Court election petitions; Parliament deliberately excluded such jurisdiction
- The only interlocutory decision that gives the Court of Appeal jurisdiction is an order striking out an election petition, which is a final decision
- A court without jurisdiction must down tools and cannot entertain the matter
- Election petitions are sui generis, governed by the Elections Act and Election Petition Rules as a complete code, with Court of Appeal Rules applying only so far as applicable
Court orders
#- 1.Preliminary objection sustained
- 2.Notice of Motion dated 18th July 2013 struck out
- 3.Costs of the application awarded to the respondents, to be paid by the applicant
- On appeal from
- High Court of Kenya at Kakamega
- High Court Election Petition No. 8 of 2013
- Jurisdiction invoked
- Article 164(3) of the Constitution of Kenya 2010 read with Section 85A of the Elections Act and Rule 35 of the Election (Parliamentary and County Elections) Petition Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 others [2013] KECA 280 (KLR)", Case Analysis (2013). Civil Application No. 24 of 2013 (UR. 11/13). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/280/eng@2013-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.