Shabhal v Independent Electoral and Boundaries Commission & 3 others (Civil Appeal 42 of 2013) [2014] KECA 658 (KLR)

Applying Mukisa Biscuits and the Lillian S decision, the court held that where the respondents assert no appeal lies in light of the Supreme Court judgment, they could have applied under rule 84, but were not barred from raising a preliminary objection on competence at any time. The objection raised a pure point of law requiring no ascertainment of facts or exercise of discretion.

Res judicata requires a conclusive determination of the rights of the parties. The High Court declined to strike out the petition, the Court of Appeal held there was no inconsistency, and the Supreme Court held there was; there was no conclusive determination until the Supreme Court, whose judgment did not address the competence of the appeal. The Supreme Court restricted itself to its Article 163(4)(a) mandate, leaving this Court to dispose of the appeal bearing in mind its interpretation.

The court applied Article 2(4) and Article 259 of the Constitution, rejecting the appellant's prospective-nullification argument based on the South African SANDU decision, which it held was no authority for prospective operation since retroactivity never arose there. It agreed with the reasoning in Nuh Nassir Abdi that a court cannot entertain a position founded on a provision declared unconstitutional by the highest court.