Timmamy Abdalla v Swaleh Salim Swaleh Imu & 3 others [2016] KECA 438 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that being an election dispute alone doesn't earn the right to appeal to the Supreme Court; specific public importance must be shown.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an election dispute is, ipso facto, a matter of general public importance warranting certification
- 2.Whether the scope of Articles 38, 81, 83 and 86 of the Constitution raises a matter of general public importance
- 3.Whether the security of counter-foils of used ballot papers raises a matter of general public importance
- 4.Whether leave is a prerequisite before exercising the right of appeal from a decision of the Court of Appeal in an election dispute
- 5.Whether the application is competent, being filed within the appeal, by counsel not on record, late, and duplicating an application before the Supreme Court
Key legal issues
#Whether an election dispute is ipso facto a matter of general public importance
No. The character or type of case is irrelevant; the applicant must identify specific elements of general public importance transcending the particular case.
The court held that certification cannot rest on the mere label of the dispute. The Steyn principles require the intending appellant to show that the issue transcends the circumstances of the case and bears significantly on the public interest. Because the applicant did not discharge that burden, the fact that the dispute was an election dispute was insufficient for certification.
Whether the Court should delineate the scope of Articles 38, 81, 83 and 86 of the Constitution
No. The courts below were not called upon to interpret those provisions, and a case involving constitutional interpretation would anyway lie as of right under Article 163(4)(a), requiring no certificate.
A perusal of the judgments of the High Court and the Court of Appeal showed no issue framed requiring interpretation of those provisions, and full arguments were not made on them. Had the applicant genuinely sought interpretation or application of the Constitution, he would have had a direct right of appeal under Article 163(4)(a) rather than seeking certification under Article 163(4)(b).
Whether the security of counter-foils of used ballot papers raises a matter of general public importance
No. The issue as framed neither transcends the parties' dispute nor is a substantial point with significant bearing on the public interest; it merely challenges the Court's statement of the correct legal position against an administrative practice.
There was no allegation that the Court misapprehended the law or that its decision conflicted with other decisions, and no demonstration that the alleged practice was notorious. The Court simply stated the correct legal position as opposed to a practice applied by election officers, which cannot satisfy the Steyn principles for certification.
Whether leave is a prerequisite for an appeal to the Supreme Court from the Court of Appeal in an election dispute
Leave is required where the appeal is brought under Article 163(4)(b); only cases involving interpretation or application of the Constitution attract an appeal as of right under Article 163(4)(a).
The court found the provisions of Article 163(4) plain and held the applicant had demonstrated no case for further Supreme Court input on the leave requirement. Certification under Article 163(4)(b) necessarily requires the matter of general public importance threshold to be met before an appeal lies, whereas constitutional interpretation cases proceed as of right.
Whether the application was incompetent for procedural defects - filing within the appeal, counsel not on record, delay, and duplication before the Supreme Court
No prejudice was shown from filing within the appeal or from absence of a Notice of Change of Advocates; the delay was not inordinate; and the application was legitimate because the Supreme Court had declined to entertain the parallel application while this one was pending.
The court applied the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution to overlook procedural defects since the respondents fully responded. The Supreme Court Rules impose no time limit for certification applications, and the parallel Supreme Court application had not been determined, so the legitimacy of this application was acknowledged.
Legal principles established
#- An election dispute is not, by its character or type alone, a matter of general public importance; the applicant bears the obligation to identify and concisely set out the specific elements of general public importance attributed to the matter
- The phrase 'a matter of general public importance' should not be rigidly defined; the Supreme Court's principles in Hermanus Phillipus Steyn govern certification
- Only one question of general public importance need be demonstrated for certification to be granted
- Leave is required to appeal to the Supreme Court from the Court of Appeal under Article 163(4)(b); an appeal as of right lies only under Article 163(4)(a) in cases involving interpretation or application of the Constitution
- Failure to file a Notice of Change of Advocates before acting on a certification application is not fatal and may be overlooked under the overriding objective
Court orders
#- 1.Dismissed the applicant's notice of motion dated 19th February, 2014 seeking leave and certification to appeal to the Supreme Court
- 2.Dismissed the application with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- H.C. Elec. Petition No. 4 of 2013 Consolidated with H.C. Election Petition No. 5 of 2013
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution - certification that a matter of general public importance is involved; Sections 15 and 16 of the Supreme Court Act; Rule 31(2) of the Supreme Court Rules
Relief refused
#Certificate under Article 163(4)(b) that the intended appeal involves matters of general public importance
None of the four issues raised by the applicant satisfied the Hermanus Phillipus Steyn principles: an election dispute is not per se a matter of general public importance; the constitutional provisions were not interpreted below; the counter-foil issue neither transcends the case nor bears significantly on the public interest; and the leave question is answered by the plain words of Article 163(4)
Costs
Dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The fact that the dispute is an election dispute, per se, is not sufficient for certification.
We also add that only one question of general public importance need be demonstrated for certification to be granted.
We think an attempt at a definition will be counterproductive and may, in fact, impede development of jurisprudence in this area.
The short answer is that leave will be required if the application is made under Article 163 (4) (b) of the Constitution.
The upshot of our above consideration is that we find no merit in the applicant's notice of motion dated 19th February, 2014. We dismiss it with costs.
Issues in the judgment
#The Steyn principles as reproduced in the judgment skip item (viii), numbering runs from (vii) to (ix)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timmamy Abdalla v Swaleh Salim Swaleh Imu & 3 others [2016] KECA 438 (KLR)", Case Analysis (2016). Civil Appeal (Application) No. 36 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/438/eng@2016-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.