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Court of AppealStruck OutCivil Application (Election) - Nairobi (application dated 14th August, 2018)

Tomito Alex Tampushi v Patrick Sosio Lekakeny & 3 others [2018] KECA 126 (KLR)

Court of Appeal
19 October 2018
3,027 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it cannot hear second appeals in MCA election disputes, striking out an applicant's late appeal extension request with costs.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal (Waki, JA) delivered at Nairobi on 19th October 2018 on an application under Regulations 5 and 17 of the Court of Appeal (Election Petition) Rules, 2017, seeking extension of time to file, and admission out of time of, a notice of appeal and record of appeal against a High Court (Narok, Bwonwonga, J.) decision of 31st May 2018 which had reversed a Magistrate's Court nullification of an MCA election for Shakoe Ward, Narok County. The 1st respondent raised a preliminary objection that the Court lacked jurisdiction over a second appeal in an MCA election matter, rendering any extension futile. The judge framed jurisdiction as a threshold issue, invoking the Motor Vessel Lilian 'S' principle and the Supreme Court's Macharia exposition on jurisdiction. Relying on its own prior decisions in Isaac Oerri Abiri and Hamdia Yaroi Sheikh Nuri, the court held that sections 75(1A) and 75(4) of the Elections Act confine MCA election disputes to the Resident Magistrate's Court with a single appeal to the High Court on matters of law, and that section 85A, which governs appeals to the Court of Appeal, covers only National Assembly, Senate and county governor disputes. The omission of further appeals was held deliberate. The Court concluded it had no jurisdiction, declined to consider the merits of the delay (bereavement of counsel and lack of funds), struck out the application and awarded costs to the 1st, 2nd and 4th respondents. The decision below was not disturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction to entertain a second appeal arising from an election petition concerning the election of a Member of a County Assembly
  2. 2.If jurisdiction exists, whether the applicant should be granted extension of time to file and have admitted a notice of appeal and record of appeal filed out of time

Key legal issues

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01

Jurisdiction of the Court of Appeal over second appeals in MCA election disputes

Holding

The Court of Appeal has no jurisdiction to hear second appeals from decisions of the High Court on appeals from the Resident Magistrate's Court concerning validity of election of a member of a county assembly.

Reasoning

Section 75(1A) of the Elections Act vests original jurisdiction over MCA election petitions in the Resident Magistrate's Court, and section 75(4) permits one appeal to the High Court on matters of law only. Section 85A, which governs appeals to the Court of Appeal, expressly covers only membership of the National Assembly, Senate or the office of county governor. The omission of second or further appeals from MCA disputes was deliberate, confining such disputes to the Magistrate's Court with one appeal to the High Court. This accords with Abiri and Hamdia Yaroi Sheikh Nuri.

p. 3
02

Whether it is futile to consider extension of time where the intended appeal is devoid of jurisdiction

Holding

It would be futile to extend time for filing an appeal which the Court has no jurisdiction to entertain; the application must be struck out without considering its merits.

Reasoning

Jurisdiction is a threshold question: if none exists, the court must down its tools regardless of the merits or the equities of the delay. The reasons offered for the delay (bereavement of counsel and lack of funds) need not be evaluated because even a validated appeal would be null and void for want of jurisdiction. Judicial discretion must accord with the law.

p. 5

Legal principles established

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  • The Court of Appeal has no jurisdiction to entertain second appeals in election petitions concerning the election of Members of County Assembly; its election jurisdiction under section 85A of the Elections Act extends only to appeals from High Court original-jurisdiction decisions concerning membership of the National Assembly, Senate or the office of county governor.
  • Where a court has no jurisdiction, it must decline to exercise any discretion or consider the merits of an application before it.

Court orders

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  1. 1.The application dated 14th August 2018 seeking extension of time and admission out of time of the notice of appeal and record of appeal was struck out
  2. 2.Costs of the application awarded to the 1st, 2nd and 4th respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court at Narok (Bwonwonga, J.)
Petition Appeal No. 1 of 2018
Jurisdiction invoked
Article 164(3) of the Constitution and Regulations 5 and 17 of the Court of Appeal (Election Petition) Rules, 2017

Relief refused

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Extension of time to file notice of appeal and record of appeal

The Court had no jurisdiction to entertain second appeals from High Court decisions in MCA election petitions; it would be futile to extend time where no jurisdiction exists

p. 5

Admission of the notice of appeal and record of appeal out of time and deemed properly filed

The intended appeal is itself incurably defective for want of jurisdiction; judicial discretion cannot be exercised contrary to the law

p. 5

Costs

The application is struck out with costs to the 1st, 2nd and 4th respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the end, I have come to the conclusion that the issue of jurisdiction of this Court in second appeals from MCA petitions is now virtually settled. The court has no jurisdiction.
p. 2Absence of appellate jurisdiction in MCA election second appeals
the legislature clearly intended to confine jurisdiction to determine electoral disputes involving membership of a county assembly to the Resident Magistrate's Court with one chance of appeal to the High Court on matters of law only.
p. 3Legislative scheme under sections 75 and 85A of the Elections Act
The exercise of judicial discretion must accord with the law. Accordingly, I must down my tools and now do so. The application is struck out with costs to the 1st, 2nd and 4th respondents.
p. 5Final orders - futility of extending time where jurisdiction is lacking

Issues in the judgment

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minor

The judgment does not set out the title/case number of the application; the caption identifying the parties and the appeal number is absent from the text supplied.

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, "Tomito Alex Tampushi v Patrick Sosio Lekakeny & 3 others [2018] KECA 126 (KLR)", Case Analysis (2018). Civil Application (Election) - Nairobi (application dated 14th August, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/126/eng@2018-10-19

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