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Court of AppealDismissedCivil Appeal 52 of 2013· [2014] KECA 875 (KLR)

Paul Posh Aborwa v Independent Electoral & Boundaries Commission & 2 others

Court of Appeal
2 May 2014
WKW KaranjaMohamed Abdulahi WarsameM A WarsameSKS G Kairu
4,637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that an election petition filed late is a nullity, and no appeal can rescue it.

What this practically means

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Executive summary

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The Court of Appeal (Karanja, Warsame and Kairu, JJA) dismissed an appeal against the Election Court's dismissal of a petition challenging the election of David Aoko Were as Member of National Assembly for Matungu constituency in the 4 March 2013 general election. The respondents raised a preliminary objection that the High Court petition had been filed outside the 28-day period prescribed by Article 87(2) of the Constitution, having been lodged under section 76 of the Elections Act, which the Supreme Court in Ali Hassan Joho v Suleiman Shabal had declared a nullity for inconsistency with the Constitution. The appellant conceded the out-of-time filing but argued that the Joho declaration should operate prospectively, relying on South African, Canadian and English authorities on retroactivity and prospective overruling. The court held that the Supreme Court's nullification did not involve a change in law: Article 87(2) had been in force since 2010, constitutional supremacy under Article 2 renders inconsistent statutes void ab initio, and no legitimate reliance on section 76 was possible. The foreign authorities were distinguished as arising under constitutions with express transitional provisions or involving genuine judicial change of law. The court further held, applying Tononoka Steels, that a jurisdictional objection may be raised for the first time on appeal where no disputed facts arise. Upholding the objection, the court found it had no jurisdiction over an appeal from proceedings that were a nullity ab initio, dismissed the appeal, and awarded costs to the respondents capped at Kshs. 500,000 for each respondent. The decision binds subordinate courts on the void ab initio effect of unconstitutional statutory timelines in electoral disputes.

Key legal issues

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01

Retroactive versus prospective effect of the Supreme Court's nullification of section 76 of the Elections Act

Holding

The nullification did not change the law; section 76 was always subordinate to Article 87(2) and void ab initio, so the question of retroactivity does not arise.

Reasoning

The court distinguished foreign authorities (Bhulwana, Hislop, Spectrum Plus) which dealt with judicial change of law or constitutions with express transitional provisions. Kenya's Constitution has no equivalent of section 98(5) and (6) of the South African Constitution. Article 87 was in place since 2010; the Supreme Court merely applied existing constitutional law, aligning statute with the Constitution. No legitimate reliance on section 76 was possible given constitutional supremacy under Article 2 and section 3 of the Judicature Act.

p. 7
02

Competence of raising the jurisdictional objection for the first time on appeal

Holding

The objection was properly before the Court despite not having been canvassed before the Election Court, because it is jurisdictional and involves no disputed facts.

Reasoning

Relying on Tononoka Steels, the court held that a point of law may be taken for the first time on appeal where no investigation of disputed facts or evidence is involved, and a court may raise a jurisdictional point on its own motion. The facts that the petition was filed outside Article 87(2) and that the objection is jurisdictional were not disputed.

p. 8
03

Effect of out-of-time filing on appellate jurisdiction

Holding

Because the High Court petition was itself a nullity ab initio, the Court of Appeal had no jurisdiction to entertain the appeal.

Reasoning

Under Article 2(4) of the Constitution, acts done in contravention of the Constitution are invalid. The appellant conceded the petition was filed outside the Article 87(2) timeframe and that section 76 had been declared a nullity. An appellate court cannot validate proceedings that were a nullity from inception; the appeal therefore failed on jurisdiction without consideration of the 19 grounds of appeal.

p. 3

Legal principles established

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  • An election petition filed outside the 28-day period in Article 87(2) of the Constitution is a nullity, and an appeal from such proceedings is incompetent for want of jurisdiction.
  • A statutory provision declared inconsistent with the Constitution is void ab initio; the Supreme Court's nullification of section 76 of the Elections Act did not involve a change in law, so no question of retroactive or prospective application arises.
  • A jurisdictional point of law may be raised for the first time on appeal where no disputed facts or evidence are involved.

Court orders

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  1. 1.Preliminary objection upheld; the Court determined it has no jurisdiction to hear and determine the appeal
  2. 2.Appeal dismissed with costs to the respondents
  3. 3.Costs of the appeal capped and shall not exceed Kshs. 500,000.00 for each respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 87(2)
  • Constitution of Kenya 2010Article 2(4)
  • Constitution of Kenya 2010Article 2 (supremacy)
  • Constitution of Kenya 2010Article 163(7)
  • Constitution of Kenya 2010Articles 50 and 258
  • Elections ActSection 85A
  • Elections ActSection 76(1)
  • Elections ActSections 62, 63, 64, 65
  • Judicature ActSection 3
  • Drugs and Drug Trafficking Act 140 of 1992 (South Africa)Section 21(1)(a)(i)
  • Constitution of the Republic of South AfricaSections 98(5) and 98(6); Section 25(3)

Cases cited (6)

  • Ali Hassan Joho V Suleiman Shabal and 2 others
    Petition No. 10 of 2013

    Declared section 76(1) of the Elections Act a nullity for inconsistency with Article 87(2) of the Constitution

  • State V Bhulwana
    (1995) CCT 12/95

    Order of invalidity not affecting cases finalized prior to the order, in the context of sections 98(5) and 98(6)

  • Attorney General of Canada v George Hislop and 4 others
    [2007] SCC 10

    Retroactive effect of judgments changing law; reliance interests may temper retroactive constitutional remedies

  • In re Spectrum Plus Ltd (In Liquidation)
    [2005] UKHL 41

    Correcting an error of statutory interpretation is not changing the law; no prospective overruling

  • Joshua Mutoto Werunga V Joyce Namunyak and 2 others
    Election Petition No. 10 of 2013

    Cited by 1st and 2nd respondents on invalidity of out-of-time petitions

  • Tononoka Steels Ltd V The Eastern and Southern Africa Trade and Development Bank
    (2000) 2 EA 536

    A point of law, including jurisdiction, may be taken for the first time on appeal

On appeal from
High Court of Kenya at Kakamega
High Court Election Petition No. 9 of 2013
Jurisdiction invoked
Section 85A of the Elections Act (appeal on matters of law only); jurisdiction ousted by Article 87(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Paul Posh Aborwa v Independent Electoral & Boundaries Commission & 2 others", Case Analysis (2014). Civil Appeal 52 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/875/eng@2014-05-02

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