John Ndirangu Kariuki v Commission on Administrative Justice & another [2017] KECA 616 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the constitutional petition contravened mandatory constitutional and statutory provisions governing election disputes
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
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.
Whether the High Court sitting as a constitutional court had jurisdiction to determine the petition
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
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.
Legal principles established
#- 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
#- 1.Appeal allowed
- 2.Ruling and order of Mumbi Ngugi, J. dated 6th June, 2014 set aside
- 3.The 2nd respondent's notice of motion dated 29th August, 2013 allowed in terms of prayers 1 and 2 thereof
- 4.The 1st respondent to bear the costs of the appeal as well as the costs of the High Court proceedings
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.