Omwenga & 2 others v Independent Electoral and Boundaries Commission & another (Civil Appeal (Application) 137 of 2014) [2014] KECA 315 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed there is no second appeal in election disputes, striking out the appeal because the law grants only one appeal to the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether a second appeal lies to the Court of Appeal from the High Court's appellate decision in an electoral petition under Section 75(4) of the Elections Act
No appeal lies; the Court has no jurisdiction to entertain a second appeal in electoral matters absent express statutory conferment.
The right of appeal and the jurisdiction of an appellate court exist only by express statutory donation. Section 75(4) grants a single appeal to the High Court on matters of law, with strict timelines designed to secure finality and expedition in electoral disputes. The absence of any provision for a second appeal is deliberate, and the Court may not arrogate undonated jurisdiction, which would subvert finality and prolong electoral anxiety. The Court accordingly downed its tools and struck out the appeal.
The foundational character of jurisdiction and the effect of its absence on judicial decisions
Jurisdiction is everything; a court without jurisdiction must stop, and judgments rendered without jurisdiction are nullities, void and liable to collateral attack.
Drawing on the Lillian 'S' doctrine, the Supreme Court's advisory opinion in the Interim Independent Electoral Commission case, and comparative and foreign authorities including Nigerian and American decisions and Macfoy v United Africa Co., the Court reaffirmed that jurisdiction flows from the law and cannot be assumed by judicial craft. A decision made without jurisdiction binds no one and may be impeached collaterally, as the Court itself had recently done in Nguruman Ltd v Shompole Group Ranch.
Legal principles established
#- There is no right of appeal apart from express statutory conferment; a court cannot assume jurisdiction not donated by the Constitution or statute.
- Where a court lacks jurisdiction over the subject matter, its proceedings are nullities and may be collaterally attacked in any court.
Court orders
#- 1.The motion by the Commission dated 2nd July 2014 is granted
- 2.Civil Appeal No. 137 of 2014 is struck out
- 3.The appellants shall pay the costs of the appeal to the respondents and of the motion to the Commission
- On appeal from
- High Court
- null
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules; jurisdictional question considered under Article 164(3) of the Constitution and Section 75(4) of the Elections Act, Cap. 7
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Twaher Abdulkarim Mohammed v Mwathethe Adamson Kadenge & 2 others [2015] KECA 153 (KLR)[2015] KECA 153 (KLR)11 Dec 2015
Cite this brief
#Cite this brief
Caselaw, "Omwenga & 2 others v Independent Electoral and Boundaries Commission & another (Civil Appeal (Application) 137 of 2014) [2014] KECA 315 (KLR)", Case Analysis (2014). Civil Appeal No. 137 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/315/eng@2014-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.