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Court of AppealPartially AllowedCivil Appeal (Election Petition Appeal) – Nyeri, against High Court Election Petition No. 4 of 2013· [2013] KECA 282 (KLR)

Leiyagu v Independent Electoral and Boundaries Commmission & 2 others (Civil Appeal 18 of 2013) [2013] KECA 282 (KLR)

Court of Appeal of Kenya
20 August 2013
AVAlnashir VisramMartha Karambu KoomeM. K. KoomeJOJ. Otieno-Odek
4,803 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated an election petition dismissed when the petitioner missed one hearing day, holding courts can undo their own orders to prevent injustice.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Nyeri (Visram, Koome and Otieno-Odek, JJA) allowing an appeal against the dismissal of an application to reinstate an election petition for the Laikipia North Constituency seat, which the High Court (Wakiaga J) had dismissed for the petitioner's non-attendance on the first hearing day of 10th June 2013. The Judge had refused to reinstate on three grounds: that the Elections Act contained no provision for reinstating a dismissed petition; that the appellant had not sworn an affidavit explaining his absence; and that he would in any event have dismissed the petition summarily under Section 79(a) of the Elections Act. The Court of Appeal held that the absence of an express statutory reinstatement mechanism does not oust the court's inherent, implied jurisdiction to set aside its own orders to do justice, drawing on Taylor v Lawrence and Karuturi Networks. It found the non-attendance was an excusable mistake: the appellant and counsel attended the very next day, within their allotted dates, ready to proceed, and the prejudice to the respondents was compensable in costs. The Judge misapprehended the time factor and the overriding objective. The Court further held that once a petition was admitted for hearing and dates fixed, summary dismissal under Section 79(a) was unavailable, and that objections to the incomplete record and the form of the prayers were technical and non-fatal. The Court allowed the appeal, set aside the ruling of 8th July 2013, reinstated Petition No. 4 of 2013 for hearing on the merits before a judge other than Wakiaga J, awarded the respondents the costs of the reinstatement application, and ordered the costs of the appeal to abide the petition's outcome.

Key legal issues

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01

Inherent jurisdiction to reinstate a dismissed election petition

Holding

The absence of an express provision in the Elections Act for reinstatement of a dismissed petition does not divest the High Court of its inherent jurisdiction to set aside its own orders.

Reasoning

The Court held that statutes cannot cover every perceivable situation. Following the Taylor and Karuturi line of authority, the Court characterized the power to control its own procedure as implied jurisdiction. The Elections Act contains no express provision that a petition fixed for hearing and not prosecuted will stand dismissed for non-attendance, so the power to set aside such a dismissal exists to prevent injustice and maintain the court's character as a court of justice.

p. 7
02

Exercise of discretion in dismissing a petition for non-attendance

Holding

The Judge misapprehended the reasons for non-attendance, which amounted to an excusable mistake, and should have proceeded to hear the petition on the day already allocated to the appellant.

Reasoning

The appellant and his counsel attended court the following day, within the dates allotted to them by consent, ready to proceed, and offered an apology and explanation. The inconvenience to the respondents was compensable in costs. Dismissing the petition wasted the remaining three hearing days and did not advance the overriding objective. The Judge, though racing against the statutory six-month timeline, misapprehended both the time factor and the overriding objective.

p. 6
03

Availability of summary dismissal under Section 79(a) of the Elections Act

Holding

The Judge's observation that he would in any event have dismissed the petition under Section 79(a) was a clear misdirection, because that summary power is exercisable only upon receipt of the petition, before a pre-trial conference and fixing of hearing dates.

Reasoning

The Court agreed with counsel that having admitted the petition for hearing, set it down for pre-trial and fixed hearing dates by consent, the Judge could not revert to the summary rejection mechanism in Section 79(a). Doing so effectively determined the merits of the petition ex parte and denied the petitioner a hearing on a day he attended court ready to proceed.

p. 8
04

Competency of the appeal and adequacy of the relief sought

Holding

The appeal was competent notwithstanding the incomplete record and the absence of a specific prayer against the order of 11th June 2013, because allowing the appeal against the ruling of 8th July 2013 automatically reinstated the petition.

Reasoning

The Court underscored the importance of a complete record but held the respondents could have filed the omitted documents or applied to strike out the appeal rather than raise the issue at the hearing. On the prayers, the Court found that if the order of 8th July 2013 was set aside and the dismissed application allowed, the petition was automatically reinstated, so nothing substantive turned on the omitted appeal against the dismissal order.

p. 8

Legal principles established

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  • The absence of an express statutory provision for reinstatement of a dismissed election petition does not oust the court's inherent jurisdiction to set aside its own orders in order to do justice; a court possesses implied jurisdiction to control its own procedure to prevent injustice.
  • Once a petition has been admitted for hearing and hearing dates fixed after a pre-trial conference, the summary dismissal power under Section 79(a) of the Elections Act is no longer available to the court.
  • An appellate court will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself and arrived at a wrong decision, or it is manifest that the judge was clearly wrong in the exercise of discretion resulting in injustice.
  • The dismissal of a suit for non-attendance is a draconian step that must be proportionate; where a party attends court the very next day ready to proceed, the interests of justice favour hearing the case and compensating the other party with costs.
  • Objections to an incomplete Record of Appeal raised for the first time at the hearing of the appeal will not succeed where the opposing party could have applied to strike out the appeal; courts now favour substantive justice over technicalities.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling dated 8th July 2013 set aside
  3. 3.Notice of Motion filed on 14th June 2013 allowed in terms of Prayer No. 1 and 2, reviewing and setting aside the order of 11th June 2013 dismissing the petition and reinstating the petition for hearing
  4. 4.Petition No. 4 of 2013 directed to be heard on merit before another Judge other than Wakiaga J.
  5. 5.Costs of the application dated 14th June 2013 in the High Court awarded to the respondents
  6. 6.Costs of this appeal to abide the outcome of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 87
  • Constitution of Kenya, 2010Article 159 (2)(d) and (e)
  • Elections ActSection 79(a)
  • Elections ActSection 35
  • Civil Procedure Act, Cap 21Sections 1A and 3B
  • Civil Procedure Act, Cap 21Section 80
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 51
  • Election Petition RulesRule 4(1), (2) and (3) – overriding objectives

Cases cited (9)

  • Raila Odinga vs Independent Electoral and Boundaries Commission and Another
    Election Petition No. 4 of 2013
  • D.T. Dobie & Company Kenya Ltd vs Joseph Mbaria Muchina
    CA No. 37 of 1978
  • Taylor and Another vs Lawrence
    [2002] 2 All E.R.
  • Ferdinand Ndungu Waititu vs Independent Electoral and Boundaries Commission and others
    CA No. 137 of 2013 (UR 94 of 2013)
  • Mbogo & another v Shah
    EALR 1968 page 13
  • Belinda Murai & others vs Amoi Wainaina
    [1978] LLR 2782 (CALL)
  • Philip Chemowolo & Another v Augustine Kubede
    [1982-88] KAR 103 at 1040
  • Jyoti Basu
    supra (as cited in the High Court ruling)
  • Karuturi Networks Ltd & Anor. vs Daly & Figgis Advocates
    Civil Appl. NAI. 293/09
On appeal from
High Court of Kenya at Nyeri
Election Petition No. 4 of 2013
Jurisdiction invoked
Appeal against a ruling in an election petition under the Elections Act (the judgment identifies the right of appeal to the Court of Appeal in election matters; the petition itself was founded on Article 87 of the Constitution)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Leiyagu v Independent Electoral and Boundaries Commmission & 2 others (Civil Appeal 18 of 2013) [2013] KECA 282 (KLR)", Case Analysis (2013). Civil Appeal (Election Petition Appeal) – Nyeri, against High Court Election Petition No. 4 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/282/eng@2013-08-20

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