Twaher Abdulkarim Mohammed v Mwathethe Adamson Kadenge & 2 others [2015] KECA 153 (KLR)
The bottom line
#The Court of Appeal confirmed there is no second appeal in Kenyan MCA election disputes — the High Court's decision is final.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's jurisdiction under Article 164(3)(a) versus the statutory right of appeal in election matters
Article 164(3)(a) is the constitutional foundation of the Court's jurisdiction, but the right of appeal in electoral disputes is regulated by legislation enacted under Article 87(1); for MCA elections the appeal lies only to the High Court on matters of law, so no second appeal lies to the Court of Appeal
The Constitution must be read as an integrated whole; Article 164(3)(a) is general while Article 87(1) specifically directs Parliament to establish mechanisms for timely settlement of electoral disputes. The Elections Act's mechanisms - a single appeal to the High Court on matters of law within 30 days, determined within six months - implement Article 87(1) and are sanctioned by the Constitution.
Whether the Court should overrule Isaac Oerri Abiri and Joel Nyabuto Omwenga
The Court declined to depart from its precedents, finding they state the correct position of the law on Article 164(3)(a)
Applying the doctrine of stare decisis and the guidelines in Dodhia v National Grindlays Bank Ltd and Jasbir Rai v Rai Plywoods, the Court held that previous decisions may be departed from only for good cause, such as where a decision is obiter, per incuriam, or plainly contrary to law. No such basis existed here.
Legal principles established
#- Article 164(3)(a) confers jurisdiction on the Court of Appeal but does not create an automatic right of appeal from every decision of the High Court; the right of appeal must be conferred by the Constitution or statute, and in MCA election petitions the appeal lies only to the High Court
- Electoral disputes, other than presidential election petitions, have only one appellate chance, and where the appeal reaches the Court of Appeal it is restricted to matters of law
- The Court of Appeal will not depart from its previous decisions without good cause, following the Dodhia guidelines
Court orders
#- 1.The preliminary objection on jurisdiction was sustained
- 2.The appeal was struck out with costs
- On appeal from
- High Court of Kenya at Malindi
- Election Petition Appeal No. 1 of 2014 (arising from Electoral Petition No. 1 of 2014)
- Jurisdiction invoked
- Article 164(3)(a) of the Constitution as read with Article 87(1) and section 75 of the Elections Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Twaher Abdulkarim Mohammed v Mwathethe Adamson Kadenge & 2 others [2015] KECA 153 (KLR)", Case Analysis (2015). Civil Appeal No. 45 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/153/eng@2015-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.