Abdullahi v Nooru & 3 others (Civil Appeal 300 of 2013) [2014] KECA 621 (KLR)

Unlike foreign constitutions considered by the parties, Article 2(4) of the Kenyan Constitution expressly provides that any law inconsistent with the Constitution is void to the extent of the inconsistency. The Irish decision in Murphy was persuasive because it dealt with a similar express provision; the American cases (Chicot, Chevron) were irrelevant because the US Constitution contains no such provision. The Supreme Court having declared section 76(1)(a) a nullity, the section is void ab initio and cannot validate petitions filed outside the 28-day period in Article 87(2).

The Court held that in ordinary civil suits a party aggrieved by a preliminary decree who does not appeal is precluded from disputing it in an appeal from the final decree, but no preliminary decree existed here. The right of appeal from an interlocutory decision of an Election Court subsists during the pendency of the petition until final determination, and the appeal gave the respondents a right under the Court of Appeal Rules to cross-appeal on a matter of law. The parties also agreed the cross-appeal should proceed notwithstanding timing defects, consistent with the overriding objective.

Section 3(1) of the Appellate Jurisdiction Act does not itself donate a right of appeal. Section 80(3) of the Elections Act recognised interlocutory matters but gave the High Court power to deal with them without an independent right of appeal, in contrast to Order 43 of the Civil Procedure Rules in ordinary civil matters. Section 85A confers a right of appeal from the High Court's determination of an election petition on a matter of law, following the final judgment and decree.