Isaac Oerri Abiri v Samwel Nyang'au Nyanchama & 2 others
The bottom line
#Kenya's Court of Appeal confirmed there is no second appeal in county assembly election disputes — one High Court appeal is the final step.
What this practically means
#Executive summary
#Key legal issues
#Whether Rule 84 of the Court of Appeal Rules bars a preliminary objection on jurisdiction raised more than thirty days after service of the record of appeal
No. Rule 84 does not take away the Court's discretion to entertain a preliminary objection challenging its own jurisdiction.
The proviso in Rule 84 limits applications to strike out a notice or record of appeal after thirty days, but it cannot oust the Court's discretion to hear a jurisdictional challenge. All authorities were agreed that without jurisdiction the Court must down tools and take no further step; the jurisdictional question therefore had to be determined first regardless of when the objection was raised.
Whether the Court of Appeal has jurisdiction over an appeal from the High Court's appellate determination of an election petition concerning membership of a county assembly
No. Section 75(4) of the Elections Act provides for one appeal only, to the High Court on matters of law; the omission of a second appeal is deliberate and no appeal lies to the Court of Appeal.
Articles 87(1) and 105(3) of the Constitution commanded Parliament to enact legislation establishing timely mechanisms for settling electoral disputes. Section 75(4) confines county assembly election disputes to the Resident Magistrate's Court with one appeal to the High Court on matters of law. Section 85A, governing appeals to the Court of Appeal, covers only petitions concerning the National Assembly, Senate or county governor. The omission of second appeals is deliberate, reflecting the constitutional imperative of timeliness and finality in electoral disputes.
Whether Supreme Court decisions permitting second appeals assist the appellant
No. Those decisions are distinguishable because the Supreme Court in them was exercising its own constitutional mandate under Article 163(4)(a) in cases involving questions of constitutional interpretation or application.
The Supreme Court assumed jurisdiction in the cases relied on by the appellant because Article 163(4)(a) allows appeals to it as of right where a case involves the interpretation or application of the Constitution. The Court of Appeal's jurisdiction, by contrast, is donated strictly by statute and the Constitution, and it declined the invitation to expand it, remaining faithful to the letter and spirit of the law.
Legal principles established
#- A court without jurisdiction must cease all action in the matter before it.
- The Elections Act deliberately provides only one appeal (to the High Court on matters of law) from a Resident Magistrate's Court determination of an election petition concerning membership of a county assembly; no second appeal lies to the Court of Appeal.
Court orders
#- 1.Upheld the preliminary objection raised by the 1st respondent
- 2.Held that no appeal lies to the Court of Appeal from a decision of the High Court in an appeal under section 75(4) of the Elections Act
- 3.Struck out the appeal with costs to the respondents
- On appeal from
- High Court of Kenya at Kisii
- Civil Appeal No. 128 of 2013
- Jurisdiction invoked
- Appeal to the Court of Appeal purportedly under Section 75(4) of the Elections Act and Article 164 of the Constitution; jurisdiction challenged on the basis of Section 85A of the Elections Act and Articles 87(1) and 105(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Oerri Abiri v Samwel Nyang'au Nyanchama & 2 others", Case Analysis (2014). Court of Appeal at Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/185/eng@2014-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.