Nderitu Gachagua v Thuo Mathenge & 2 others [2013] KECA 281 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that election results are officially declared only when gazetted, and petitions filed before gazettement are valid.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of Section 76(1)(a) of the Elections Act vis-à-vis Article 87(2) of the Constitution
Section 76(1)(a) is not inconsistent with Article 87(2); the Gazette is the medium of declaration of results by the IEBC, and time begins to run upon gazettement.
Article 87(2) establishes broad parameters and leaves the medium and form of declaration to the legislature. Reading the Elections Act and its Regulations as a whole, only the IEBC declares final results, and Section 2 of the Act defines the election period as ending at gazettement of results. The Gazette is an official document whose publication constitutes notice to the public and confers certainty, finality and legality on declared results.
Whether the returning officer's announcement and Form 36/38 certificate amount to declaration of results
No - these constitute only provisional results and a written record thereof; only the IEBC declares final results.
Regulations 87(9) and (10) show that tallied results forwarded to the Commission are provisional. The returning officer's duty is limited to announcement of results, and declarations in the prescribed forms are read ejusdem generis with announcement. The Court adopted Githinji, J.A's finding in Joho v Shahbal on this point.
Whether the High Court had jurisdiction over a petition filed before gazettement of results
Yes - the High Court had jurisdiction; Article 88(4)(e) does not exclude or limit the High Court's original and unlimited jurisdiction, and the parties enjoyed concurrent jurisdiction before declaration of results.
Article 165(3)(a) grants the High Court original and unlimited jurisdiction, and it is the only court with jurisdiction over election petitions other than presidential ones. The petitioner sought multiple remedies including an injunction which the IEBC could not grant; a purposive interpretation does not drive citizens from the seat of justice. The mischief targeted by the 28-day limit was late filing, not early filing, and no prejudice flowed from early filing.
Whether a court without jurisdiction may invoke inherent jurisdiction to save a petition
No - the learned Judge misdirected himself in invoking inherent jurisdiction after finding no jurisdiction, though on the correct analysis the High Court had jurisdiction all along.
Jurisdiction flows from the Constitution and statute and cannot be expanded by judicial craft or innovation, as the Supreme Court held in Re the Interim Independent Electoral Commission and in the Lillian S decision. Since the High Court in fact had jurisdiction, there was no need, and no capacity, to invoke inherent jurisdiction under the Civil Procedure Act or Article 159.
Legal principles established
#- Declaration of election results by the IEBC under Article 87(2) of the Constitution is effected through publication in the Kenya Gazette, and Section 76(1)(a) of the Elections Act is constitutional; time for filing an election petition runs from the date of gazettement of the results.
- A returning officer's announcement of results and issuance of Form 35/36 declarations constitute only a written record of provisional results, not the declaration of results envisaged by Article 87(2).
- The IEBC and the High Court enjoy concurrent jurisdiction over electoral disputes prior to declaration of results; after declaration of results, the High Court enjoys exclusive jurisdiction, and a petition filed before gazettement is not premature or incompetent.
- The constitutional time limit for filing election petitions was aimed at the mischief of late filing, not early filing; a petition filed before gazettement causes no prejudice and is not struck out.
- A court lacking jurisdiction cannot invoke inherent jurisdiction to save an otherwise incompetent petition; jurisdiction flows only from the Constitution and statute.
Court orders
#- 1.The cross appeal by the 1st respondent is allowed
- 2.The appeal by the appellant is dismissed
- 3.Each party to bear its own costs
- On appeal from
- High Court of Kenya at Nyeri
- H.C Election Petition No. 1 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory appeal from the High Court's ruling on a preliminary objection in an election petition (Elections Act; Article 164 of the Constitution, as framed by the parties' appeal and cross-appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics & Anti-Corruption Commission v Njoroge & 3 others (Environment and Land Case 360 of 2017) [2025] KEELC 4516 (KLR)[2025] KEELC 4516 (KLR)16 Jun 2025
- Dr. Thuo Mathenge & another v Nderitu Gachagua & 2 others [2013] KECA 84 (KLR)[2013] KECA 84 (KLR)4 Dec 2013followed
Cite this brief
#Cite this brief
Caselaw, "Nderitu Gachagua v Thuo Mathenge & 2 others [2013] KECA 281 (KLR)", Case Analysis (2013). Civil Appeal No. 14 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/281/eng@2013-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.