Mohamed Ali Sheikh v Abdiwahab Sheikh & 4 others; Emmanuel Changawa Kombe (Interested Party) [2018] KECA 75 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear second appeals in county assembly (MCA) election petitions; such disputes end at the High Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to hear a second appeal from a judgment of the High Court in an election petition (appeal) for election of a member of a county assembly
- 2.Whether the Court's prior decisions declining jurisdiction in MCA second appeals were decided per incuriam and should be departed from
- 3.Whether section 85A of the Elections Act is discriminatory and unconstitutional for excluding MCA election appeals from the Court of Appeal
- 4.Whether the absence of a second appeal in MCA election petitions violates the constitutional rights of access to justice and fair hearing
Key legal issues
#Jurisdiction to hear a second appeal in an MCA election petition
The Court of Appeal has no jurisdiction to hear a second appeal from the High Court in an election petition for member of a county assembly.
Section 75(4) of the Elections Act confines appeals from the Magistrate's Court in MCA election petitions to the High Court on matters of law only, and section 85A confers appellate jurisdiction on the Court of Appeal only for National Assembly, Senate and county governor election petitions. Applying the expressio unius maxim, the omission of MCA appeals is deliberate, consistent with Article 87(1)'s command of timely resolution of electoral disputes. Election petitions are sui generis and governed strictly by the Elections Act.
Per incuriam as a basis for departing from precedent
The Court's prior decisions declining jurisdiction were not made per incuriam and bind the Court; the strict threshold for per incuriam was not demonstrated.
Drawing on Jasbir Rai v Rai Plywoods, the Court reaffirmed that departure from precedent requires demonstration that the earlier decision was made in ignorance of a binding decision of its own, a Supreme Court decision, or a relevant constitutional or statutory provision. The earlier MCA decisions considered all the relevant Articles of the Constitution and sections 75 and 85A of the Elections Act in light of Supreme Court authority, so they cannot be said to have been made per incuriam.
Constitutionality and discrimination challenge to section 85A of the Elections Act
Section 85A is constitutional and not discriminatory; a provision held constitutional by the Supreme Court remains constitutional in all contexts.
The Supreme Court in Frederick Otieno Outa v Jared Odoyo Okello upheld section 85A against a constitutional challenge. The Court rejected the argument that the exclusion of MCA appeals discriminates contrary to Article 27(1), holding that limiting the number of appeals actualises the constitutional value of timely resolution of electoral disputes under Article 87(1). A section cannot be constitutional in one context and unconstitutional in another.
Access to justice and fair hearing
Denial of a second appeal in MCA election petitions does not violate the right of access to justice or fair hearing; the right of appeal is statutory, not a common-law or inherent fundamental right.
The applicant already enjoyed a full hearing before the Magistrate's Court and an appeal to the High Court on matters of law. Limitations on the number of appeals are by design and serve the constitutional imperative of expeditious finality in electoral disputes; a right of appeal must be expressly conferred by statute and cannot be implied from general constitutional language or drafter's silence.
Legal principles established
#- The Court of Appeal has no jurisdiction to entertain a second appeal from the High Court in an election petition concerning the election of a member of a county assembly; such appeals end at the High Court on matters of law only.
- Section 85A of the Elections Act confers no right of appeal to the Court of Appeal in MCA election petition matters; the express mention of National Assembly, Senate and county governor appeals excludes MCA appeals (expressio unius est exclusio alterius).
- A court may depart from its own precedent only where the earlier decision was made per incuriam, and the test for per incuriam is a strict one.
- A right of appeal is a creature of statute and cannot be implied; failure by the legislature to provide for a right of appeal means the right does not exist.
Court orders
#- 1.The Notice of Appeal dated 30th August 2018 filed on 31st August 2018 in Election Petition Appeal No. 32 of 2018 struck out for want of jurisdiction on the part of the Court
- 2.The Preliminary Objection dated 19th September 2018 upheld
- 3.The Record of Appeal filed in Election Petition Appeal No. 32 of 2018 struck out
- 4.Each party to bear his/its own costs in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Main ruling. Held that the Court of Appeal lacks jurisdiction to hear a second appeal in an election petition for member of a county assembly; the Court's consistent prior line of authority was not decided per incuriam, the strict test for per incuriam not being met; section 85A of the Elections Act is not discriminatory or unconstitutional; the Notice of Appeal and the substantive appeal were struck out for want of jurisdiction.
In conclusion, therefore, I would allow the notice of motion dated 10th September, 2018; uphold the preliminary objection dated 19th September, 2018, and order that the notice of appeal dated 30th August 2018 be and is hereby struck out for want of jurisdiction.p. 7
Wrote the judgment
Separate concurring opinion ('Legal Penumbra'). Agreed the application should be allowed, applying the expressio unius est exclusio alterius maxim to section 85A. Emphasised the doctrinal uncertainty and overlap in appellate electoral jurisdiction and urged the Supreme Court or Parliament to settle whether second or third appeals lie in MCA election petitions; proposed legislative reform giving one right of appeal for all electoral seats.
Convinced of the soundness of literal interpretation of Section 85A of the Elections Act and the application of expressio unius est exclusion alterius principle, I make this concurring opinion allowing the Preliminary Objection dated 19th September 2018 and Notice of Motion dated 10th September 2018.p. 20
- On appeal from
- High Court of Kenya at Garissa
- Election Petition Appeal No. 6 of 2018
- Jurisdiction invoked
- Article 164(3) of the Constitution read with sections 75(4) and 85A of the Elections Act, No. 4 of 2011; the application was brought under sections 75(4) and 85A(1) and (2) of the Elections Act, rule 35 of the Election (County and Parliamentary) Election Rules, 2017 and rule 19(1) of the Court of Appeal (Election Petition) Rules
Relief refused
#The appellant's application to be allowed to prosecute a second appeal to the Court of Appeal in an MCA election petition
The Court has no jurisdiction; section 85A of the Elections Act does not provide for a second appeal and the omission is deliberate
The appellant's invitation to hold that the Court's earlier decisions were made per incuriam and to depart from them
The strict test of per incuriam was not met; the earlier decisions considered all relevant constitutional provisions and the Elections Act
The appellant's claim that section 85A of the Elections Act is discriminatory and unconstitutional
The Supreme Court held section 85A constitutional and the limitation actualises constitutional values on timely resolution of electoral disputes
Costs
Each party to bear his/its own costs in the application.
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.
1. The Notice of Appeal dated 30th August 2018 filed before this Court on 31st August 2018 in Election Petition Appeal No. 32 of 2018 be and is hereby struck out for want of jurisdiction on the part of this Court.
2. The Preliminary Objection dated 19th September 2018 be and is hereby also upheld. It follows that the Record of Appeal filed in Election Petition Appeal No. 32 of 2018 be and is hereby also struck out.
3. Each party to bear his/its own costs in the application.
In conclusion, therefore, I would allow the notice of motion dated 10th September, 2018; uphold the preliminary objection dated 19th September, 2018, and order that the notice of appeal dated 30th August 2018 be and is hereby struck out for want of jurisdiction.
it is trite that a right of appeal is a creature of law. The omission by the legislature to make provision for “a right of appeal” means “the right” does not exist.
the test of per incuriam is a strict one – the relevant decision having not taken into account some specific applicable instrument, rule or authority.
The limitation by Section 85A cannot be said to be discriminatory or unconstitutional. It is actualization of constitutional values and principles as earlier stated.
The jurisdiction of a court must be certain and not fuzzy; must be apparent not latent and discretionary; must be determined by law and not on a case by case basis.
Issues in the judgment
#The coram caption describes the application as arising from Garissa High Court Election Petition Appeal No. 6 of 2018, but the orders and the concurring opinions repeatedly refer to the substantive appeal before the Court of Appeal as 'Election Petition Appeal No. 32 of 2018', an unexplained discrepancy in case numbers.
The judgment elsewhere states the general election was held on 8th August 2017, but the concurring opinion records the applicant deposing that he vied in 'the General Elections held on 8th August 2018', an internal inconsistency in dates.
Musinga, JA's final paragraph states that Kenyans may lobby the legislature to amend 'section 85' of the Elections Act, whereas the provision under consideration throughout the ruling is section 85A.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Ali Sheikh v Abdiwahab Sheikh & 4 others; Emmanuel Changawa Kombe (Interested Party) [2018] KECA 75 (KLR)", Case Analysis (2018). Election Petition Appeal (Application) No. 261 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/75/eng@2018-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.