Joseph Amisi Omukanda v The Independent Elections & Boundaries Commission & 2 others
The bottom line
#The Court of Appeal refused to let an election loser take his case to the Supreme Court, confirming only truly exceptional public-interest cases get certified.
What this practically means
#Executive summary
#Key legal issues
#Threshold for certification to the Supreme Court under Article 163(4)(b)
The applicant failed to show an issue transcending the circumstances of the case with a significant bearing on the public interest; alleged conflicts in Court of Appeal decisions do not justify certification as the Court of Appeal has mechanisms to resolve them.
The certification requirement is a filtering process ensuring only appeals with elements of general public importance reach the Supreme Court. The applicant cited no conflicting decisions of the Court of Appeal, and even such conflicts would not warrant certification since the Court of Appeal can align its own decisions. The pleadings rule and the treatment of Forms 35 present no jurisprudential moment.
Whether the constitutional interpretation grounds qualified for appeal as of right
The issues on the meaning of 'election material' under Article 86(d) were collateral questions minimally related to the substantive issues determined, so certification under the general public importance limb would be required - and was refused.
The complaint about re-tallying on photocopies of Forms 35 and 36 was a collateral question. The applicant himself obtained the copies from the IEBC and sought re-tallying on their basis. The Court found no substantial point of law with a significant bearing on the public interest in determining what constitutes election materials.
Miscarriage of justice as a ground of appeal to the Supreme Court
No jurisdiction exists to appeal to the Supreme Court on grounds of apprehended miscarriage of justice, section 16(2) of the Supreme Court Act having been declared unconstitutional and the Supreme Court having affirmed that position.
Section 16(2) of the Supreme Court Act purported to add to the Supreme Court's jurisdiction but was declared ultra vires the Constitution by the High Court, and the Supreme Court in Malcolm Bell upheld an objection to jurisdiction under that provision as an invocation of a jurisdiction that did not coincide with the Constitution's donation. The applicant abandoned the ground.
Alleged breach of Article 163(7) by departing from Raila Odinga on costs
The ground was misconceived; Raila Odinga made a costs order on its own facts and laid down no binding rule that each party must always bear their own costs in election petitions.
The High Court ordered each party to bear their own costs after dismissing the petition; on cross-appeal the Court of Appeal found that order erroneous on the facts and substituted costs capped at Kshs 1,500,000 for the 3rd respondent and Kshs 1,000,000 each for the respondents on the appeal. No precedent was violated.
Legal principles established
#- Certification under Article 163(4)(b) is reserved for exceptional cases raising cardinal issues of law or jurisprudential moment; the Supreme Court is not an additional tier for routine appeals.
- Issues of interpretation or application of the Constitution that are collateral and minimally related to the substantive issue determined require certification as a matter of general public importance; they do not qualify for appeal as of right.
- Parties may not found a case on unpleaded matters, save where the issue was raised before the court, addressed by the parties and no party was taken by surprise or prejudiced.
- Raila Amollo Odinga v IEBC laid down no hard and fast rule that costs in every election petition must be that each party bears their own costs; costs orders remain discretionary on the facts of each case.
Court orders
#- 1.The application for certification to appeal to the Supreme Court is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Court of Appeal at Kisumu
- Kisumu Civil Appeal No. 45 of 2013
- Jurisdiction invoked
- Article 163(4) of the Constitution - application for certificate to appeal to the Supreme Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Amisi Omukanda v The Independent Elections & Boundaries Commission & 2 others", Case Analysis (2014). Civil Application No. NAI 14 of 2014 (UR 5/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/507/eng@2014-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.