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Court of AppealDismissedCivil Application No. SUP 23 of 2013 (UR 14 of 2013)· [2014] KECA 571 (KLR)

Beatrice Nyaboke Oisebe v The Independent Elections & Boundaries Commission & another [2014] KECA 571 (KLR)

Court of Appeal
6 June 2014
WKW. KaranjaSKS. Gatembu KairuKMK. M'Inoti
1,894 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let a losing litigant appeal to the Supreme Court because her dispute raised no issue of public importance—just facts already decided.

What this practically means

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Executive summary

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The applicant, Beatrice Nyaboke Oisebe, sought certification under Article 163(4)(b) of the Constitution to appeal to the Supreme Court from a Court of Appeal judgment of 11 October 2013 which upheld the nomination of Muslima Dida, not her, as a UDF nominee to the Kisii County Assembly. Her dispute over the party list had already been decided against her three times: by the IEBC Nomination Dispute Resolution Committee on 7 June 2013, by the High Court (Ngugi, Majanja and Korir, JJ.) in judicial review proceedings on 12 July 2013, and by the Court of Appeal (Maraga, Mwera and Mohamed, JJ.A.). Counsel for the applicant relied on the Board of Governors, Moi High School Kabarak decision, apparently unaware that its certification had been reversed by the Supreme Court in Malcolm Bell. The respondents opposed, arguing the intended appeal raised purely personal issues of fact already conclusively settled. The Court (Karanja, Gatembu Kairu and M'Inoti, JJ.A.) held that the Supreme Court is not a fourth tier in the court hierarchy; certification is justified only in exceptional cases raising cardinal issues of law or issues of great jurisprudential moment. The intended appeal sought merely a re-adjudication of contested facts and errors on settled law. The application was dismissed with costs to the respondents on 6 June 2014.

Key legal issues

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01

Whether the intended appeal raised a matter of general public importance warranting certification to the Supreme Court

Holding

Certification refused; the intended appeal sought only findings of fact already settled by three prior fora and raised no cardinal issue of law.

Reasoning

The Court reiterated Supreme Court authority that certification is justified only in exceptional cases raising cardinal issues of law or jurisprudential moment. The applicant's draft grounds attacked factual findings by the Committee, the High Court and the Court of Appeal concerning the UDF party list. The dispute had been litigated three times, each against the applicant, and the proposed grounds were matters of fact or settled law, not issues transcending the case with public significance.

p. 3

Legal principles established

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  • The Supreme Court is not a fourth tier of appeal; certification under Article 163(4)(b) is reserved for exceptional cases raising cardinal issues of law or jurisprudential moment.
  • An applicant for certification must show an issue transcending the circumstances of the case with a significant bearing on the public interest; a substantial point of law must likewise have a significant public bearing.
  • Article 163(4)(b) jurisdiction cannot be invoked merely to rectify errors on settled law, to determine contested facts, or on a bare apprehension of miscarriage of justice.

Court orders

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  1. 1.The application for certification under Article 163(4)(b) is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 163(4)(b)
  • Constitution of KenyaArticle 163(5)
  • Constitution of KenyaArticle 177(b) and (c)
  • Constitution of KenyaArticle 90(2)
  • Election Actsections 34, 35, 36
  • County Government Act, 2012section 3(h), section 97

Cases cited (6)

  • Board of Governors, Moi High School, Kabarak & Another v Malcom Bell
    CA Nos. 12 and 13 of 2012 (consolidated)
  • Malcolm Bell v Daniel Toroitich Arap Moi & Another
    SC Application No. 1 of 2013
  • Peter Oduor Ngoge v Hon Francis Ole Kaparo & 5 Others
    SC Petition No. 2 of 2012
  • Charles Karathe Kiarie & 2 Others v The Administrators of the Estate of John Wallace Mathare (Decesed) & 5 Others
    C.A. Sup. No 12 of 2013
  • Koinange Investments & Development Ltd v Robert Nelson Ngethe
    C.A No 15 of 2012
  • Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone
    SC App. No 4 of 2012
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 179 of 2013
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya (certification that an intended appeal involves a matter of general public importance)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Beatrice Nyaboke Oisebe v The Independent Elections & Boundaries Commission & another [2014] KECA 571 (KLR)", Case Analysis (2014). Civil Application No. SUP 23 of 2013 (UR 14 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/571/eng@2014-06-06

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