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Court of AppealStruck OutElection Petition Appeal No. 30 of 2018· [2018] KECA 113 (KLR)

Hassan Jimal Abdi v Ibrahim Noor Hussein & 2 others [2018] KECA 113 (KLR)

Court of Appeal
23 November 2018
7,262 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed it cannot hear second appeals over county assembly elections, striking out an appeal against a Wajir North election ruling.

What this practically means

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Executive summary

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In a unanimous ruling of the Court of Appeal at Nairobi (Ouko (P), Nambuye and Warsame, JJ.A) delivered on 23rd November 2018, the Court allowed an application by Hassan Jimal Abdi to strike out a notice of appeal and record of appeal filed by Ibrahim Noor Hussein in Election Petition Appeal No. 30 of 2018, together with the applicant's own cross-appeal. The dispute arose from a Batalu Ward county assembly election, which the applicant had successfully petitioned to nullify in the Magistrate's Court, with the High Court dismissing a first appeal. The central question was whether the Court of Appeal has jurisdiction to entertain a second appeal in an election petition concerning a member of a county assembly. The Court held that it does not. Article 164(3) of the Constitution is a general provision, while Article 87(1) mandated Parliament to enact specific mechanisms for timely resolution of electoral disputes, accomplished through sections 75 and 85A of the Elections Act. Section 85A expressly confines appeals to the Court of Appeal to petitions concerning the National Assembly, Senate or County Governor, and its silence on county assembly elections was deliberate. Drawing on comparative authority from India, Canada and Uganda, the Court held that appellate jurisdiction must be specifically created by statute and cannot be inferred or implied, that election disputes are purely statutory and sui generis, and that the limitation on appeals does not infringe Articles 47 and 50. The Court followed its own prior decisions in Isaac Oerri Abiri and Joel Nyabuto Omwenga and applied the Supreme Court's reasoning in Gatirau Peter Munya. The notice and record of appeal and the cross-appeal were struck out; there was no order as to costs in the appeal, but the applicant received the costs of the application.

Key legal issues

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01

Jurisdiction of the Court of Appeal over second appeals in county assembly election petitions

Holding

The Court has no jurisdiction; section 85A of the Elections Act confines appeals to this Court to election petitions concerning membership of the National Assembly, Senate or the office of County Governor only.

Reasoning

The Court traced the jurisdictional chain: Article 164(3) is a general provision, while Article 87(1) mandated Parliament to enact specific mechanisms for timely resolution of electoral disputes, which it did through sections 75 and 85A of the Elections Act. Section 85A expressly limits appeals to this Court to the three named offices and omits county assembly elections. Where a clear statutory provision exists on jurisdiction, resort to general provisions is impermissible. Parliament had power to include county assembly second appeals but chose not to, so jurisdiction cannot be inferred.

p. 3
02

Whether a general constitutional right of appeal can cure statutory silence on second appeals

Holding

No. Election disputes are creatures of statute; there is no inherent appellate jurisdiction, and Articles 47 and 50 do not conflict with sections 75 and 85A of the Elections Act.

Reasoning

Drawing on comparative authority (India, Canada, Uganda), the Court held that the right to elect, be elected and dispute an election is purely statutory, and election petitions are sui generis statutory proceedings. Special jurisdiction must be exercised strictly in accordance with the statute creating it. Appellate jurisdiction must be specifically created by law and cannot be inferred or implied. The Court declined the invitation to resort to Articles 47, 40 and 164 of the Constitution in the face of the clear language of Article 87 and the Elections Act, holding that the statutory limitation does not infringe constitutional rights.

p. 5
03

Rationale for limiting appeals in electoral disputes

Holding

The limitation on the number of appeals is by design, reflecting the constitutional imperative of timely and final resolution of electoral disputes within strict timelines.

Reasoning

The Court endorsed the Supreme Court's exposition in Gatirau Peter Munya that section 85A is a product of a constitutional scheme requiring timely resolution of electoral disputes. The High Court, hearing appeals on matters of law only from the Magistrate's Court, serves the function of a second appellate court in county assembly disputes. Allowing further appeals would subvert the finality and expedition the Constitution and Elections Act entrench, prolonging electoral anxiety and potentially pushing disputes into the next electoral cycle.

p. 7

Legal principles established

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  • The Court of Appeal has no jurisdiction to hear or entertain a second appeal involving the election of a member of the county assembly; its appellate jurisdiction in election petitions is confined by section 85A of the Elections Act to appeals concerning membership of the National Assembly, Senate or the office of County Governor.
  • Where a statute confers special jurisdiction in specific terms, a court cannot infer or assume jurisdiction from general constitutional provisions; appellate jurisdiction cannot be created by inference.
  • The omission of a second appeal in county assembly election disputes under section 75(4) and section 85A of the Elections Act was deliberate, intended to secure finality and timely resolution of electoral disputes.

Court orders

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  1. 1.The notice of appeal and the record of appeal filed by the 1st respondent struck out
  2. 2.The cross-appeal dated 23rd August, 2018 struck out
  3. 3.No order as to costs in the appeal
  4. 4.The applicant to have the costs of this application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 164(3)
  • Constitution of Kenya, 2010Article 87(1)
  • Constitution of Kenya, 2010Article 105
  • Constitution of Kenya, 2010Article 259
  • Constitution of Kenya, 2010Articles 48, 50(1), 24, 25, 47, 40, 165, 163(4)
  • Elections Act, No. 24 of 2011Section 75 (including 75(1), 75(1A), 75(4))
  • Elections Act, No. 24 of 2011Section 85A
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rules 2, 3, 4, 34, 35, 36
  • Court of Appeal (Election Petition) Rules, 2017Rules 3 and 4
  • Appellate Jurisdiction Act
  • Judicature ActSection 3
  • Saskatchewan Election Act, 1996 (Canada)Sections 155(1), 158(1), 70
  • Parliamentary Elections Act, 2001 (Uganda, now repealed)Section 67
  • Constitution of UgandaArticles 86, 140(1), 132(2)
  • Code of Civil Procedure (India)Section 100

Cases cited (15)

  • Ferdinand Ndung’u Waititu vs. Independent Electoral & Boundaries Commission (IEBC) & 8 others
    [2014] eKLR (Civil Appeal No. 324 of 2013)
  • Isaac Oerri Abiri vs. Samwel Nyang’au Nyanchama & 2 others
    [2014] eKLR (Civil Appeal No. 25 of 2014 (Election Petition))
  • Narayanan Rajendran and Another vs. Lekshmy Sarojini and Others
    Civil Appeal No. 742 of 2001
  • Karwacki vs. Lorje
    (1999) 189 Sask.R. 89 (CA)
  • The Canadian Northern Ontario Railway Company vs. Smith
    [1915] 50 S.C.R. 476
  • Mather vs. Brown
    [IC.PD. 596]
  • Lamb vs. Mcleod
    (1932), 1 W.W.R. 206
  • Baku Raphael Obudra & Another vs. The Attorney General
    Constitutional Appeal No. 1 of 2005
  • Attorney General vs. Shah
    Civil Appeal 42 of 1970 EA 50
  • Jyoti Basu & Others vs. Debi Ghosal & Others
    Civil Appeal No. 1553 of 1980
  • N. P. Ponnuswami vs. Returning Officer, Namakkal Constituency, Namakkal, Salem District & Others
    Case No. 351 of 1951, AIR 1952 SC 64
  • Wolverhampton New Water Works Co. vs Hawkesford
    [1859] 6 C.B. (NS) 336
  • Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR (Application 2 of 2011)
  • Joel Nyabuto Omwenga & 2 Others vs. Independent Electoral and Boundaries Commission & Another
    [2014] eKLR (Civil Appeal (Appl.) No. 137 of 2014)
  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 3 Others
    [2014] eKLR (Petition No. 2B of 2014)
Jurisdiction invoked
The Court determined its own jurisdiction under Article 164(3) of the Constitution as read with section 85A of the Elections Act; this is an interlocutory ruling on a striking-out application within Election Petition Appeal No. 30 of 2018, not an appeal under Article 163(4)(a).

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, "Hassan Jimal Abdi v Ibrahim Noor Hussein & 2 others [2018] KECA 113 (KLR)", Case Analysis (2018). Election Petition Appeal No. 30 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/113/eng@2018-11-23

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