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Court of AppealPartially AllowedCivil Appeal No. 257 of 2014· [2017] KECA 616 (KLR)

John Ndirangu Kariuki v Commission on Administrative Justice & another [2017] KECA 616 (KLR)

Court of Appeal
31 March 2017
2,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that disputes over an MP's seat must go through the election petition process, not a general constitutional petition.

What this practically means

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Executive summary

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The Court of Appeal allowed an appeal against a High Court ruling by Mumbi Ngugi, J., who had dismissed an application to strike out a constitutional petition filed by the Commission on Administrative Justice challenging the appellant's eligibility to hold office as member of Parliament for Embakasi Central, on the ground that he had been convicted of two counts of abuse of office contrary to Article 99(2) of the Constitution. The Commission sought a declaration that the seat had become vacant under Article 103(1)(g). The IEBC had applied to strike out the petition, arguing that disputes touching on the electoral process and a member's seat could only be brought by election petition before a duly gazetted election court. The Court of Appeal collapsed the appeal into two issues: whether the petition contravened mandatory provisions of the Constitution, the Elections Act 2011 and the Petition Rules 2013; and whether the High Court sitting as a constitutional court had jurisdiction. Applying the Karume principle that prescribed procedures must be strictly followed, the Court found the petition's prayers were electoral in nature but presented in a non-compliant format. Relying on Samuel Kamau Macharia and the sui generis character of election proceedings, it held that the trial court, not being a gazetted election court, lacked jurisdiction. The appeal was allowed, the High Court ruling set aside, the striking-out motion granted, with costs to the appellant against the 1st respondent.

Key legal issues

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01

Whether the constitutional petition contravened mandatory constitutional and statutory provisions governing election disputes

Holding

Yes - the prayers sought were akin to those in an election petition but were presented in a format and procedure not in compliance with Article 105 of the Constitution, sections 76 and 77 of the Elections Act and Rules 8 and 10 of the Petition Rules

Reasoning

Article 105 vests jurisdiction over questions of valid election and vacancy of a member's seat in the High Court, and Parliament enacted the Elections Act and the Petition Rules to give effect to it. The petition's prayers were electoral in nature, yet it was filed as a constitutional petition, contravening the mandatory provisions. Following Karume and Kones, the prescribed procedure had to be strictly followed.

p. 3
02

Whether the High Court sitting as a constitutional court had jurisdiction to determine the petition

Holding

No - only a duly gazetted election court, constituted by the Chief Justice under the Petition Rules, could determine the eligibility and vacancy questions; the trial court lacked jurisdiction

Reasoning

Applying Samuel Kamau Macharia, jurisdiction flows only from the Constitution or statute and cannot be expanded by judicial craft. Because the petition concerned the electoral process, the court had to be constituted by the Chief Justice and gazetted for purposes of hearing an election petition. The trial court as constituted therefore lacked jurisdiction.

p. 4

Legal principles established

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  • Where the Constitution or an Act of Parliament prescribes a clear procedure for redress of a particular grievance, that procedure must be strictly followed; questions of eligibility for election and vacancy of a parliamentary seat must be brought by election petition before a duly gazetted election court
  • Proceedings before an election court are sui generis - neither criminal nor civil - and a court determining an election matter acts only within the terms of the Elections Act as guided by the Constitution; a High Court not sitting as a gazetted election court has no jurisdiction over such questions

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and order of Mumbi Ngugi, J. dated 6th June, 2014 set aside
  3. 3.The 2nd respondent's notice of motion dated 29th August, 2013 allowed in terms of prayers 1 and 2 thereof
  4. 4.The 1st respondent to bear the costs of the appeal as well as the costs of the High Court proceedings

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 99(2)
  • Constitution of Kenya, 2010Article 103(1)(g)
  • Constitution of Kenya, 2010Article 105
  • Constitution of Kenya, 2010Article 87(1) and (2)
  • Constitution of Kenya, 2010Article 137
  • Elections ActSection 76(1)(a) and Section 77(1)
  • Elections (Parliamentary and County Elections) Petition Rules 2013Rules 8(1)(b), 10(1)(c) and (d)

Cases cited (8)

  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application Number 2 of 2011
  • Advisory Opinion No. 2 of 2012, In the Matter of Gender Representation in the National Assembly and Senate
    [2012] eKLR
  • Kituo Cha Sheria v John Ndirangu & Another
    [2013] eKLR
  • The Speaker of the National Assembly v The Hon. James Njenga Karume
    [2008] 1 KLR 425
  • Kones v Republic & Another ex parte Kimani Wanyoike & Others
    [2008] 3 KLR EP 29
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Moses Masika Wetangula v Musikari Nazi Kombo & 2 Others
    [2015] eKLR
  • Jyoti Basu & Others v Debi Ghosi & Others
    1982 AIR 983
On appeal from
High Court of Kenya at Nairobi
High Court Constitutional Petition No. 408 of 2013
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the ruling and order of the High Court in a constitutional petition (Art. 164 Constitution); appeal against dismissal of a notice of motion to strike out the petition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Ndirangu Kariuki v Commission on Administrative Justice & another [2017] KECA 616 (KLR)", Case Analysis (2017). Civil Appeal No. 257 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/616/eng@2017-03-31

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