Hamdia Yaroi Sheikh Nuri v Faith Tumaini Kombe & 2 others [2018] KECA 328 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that county assembly election disputes end at the High Court — no second appeal lies to it under the Elections Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal has jurisdiction over a second appeal in a county assembly election petition
It does not. Section 85A of the Elections Act confines election appeals to this Court to disputes concerning members of the National Assembly, Senate or county governors, and to appeals from the High Court acting in its original jurisdiction. Members of county assemblies are conspicuously absent, and no provision allows second appeals from High Court appeals against magistrates' court decisions.
Reading Article 164(3), sections 75 and 85A of the Elections Act and rule 4 of the Court of Appeal (Election Petition) Rules 2017 together, the scheme provides for one appeal only from the magistrates' court to the High Court on matters of law. The omission of any provision for further appeals is deliberate. The only other election appellate route, under Article 164(3)(b) and section 41(2) of the Political Parties Act, applies to PPDT-originated party disputes, which this was not.
Jurisdiction must be strictly conferred by Constitution or statute
Adopting the Supreme Court's holding in Samuel Kamau Macharia, jurisdiction cannot be assumed or expanded by judicial craft; where the Constitution exhaustively provides for jurisdiction, the court must operate within those limits.
The Court applied the classic statement in Owners of the Motor Vessel 'Lilian S' and the Macharia principle that the limits of a court's authority are imposed by the statute or charter constituting it. Because the electoral statutes did not donate jurisdiction over this category of dispute, entertaining the appeal would exceed the statutorily imposed jurisdiction.
Whether the High Court's record of appeal was incompetent, whether the High Court wrongly interfered with the trial court's discretion on late filings, and whether the appellant proved non-registration
Not determined. These issues were never reached because the jurisdictional question disposed of the appeal.
The Court held that the jurisdictional question could well dispose of the entire appeal and, having found that it lacked jurisdiction, declined to address the merits, including the competence of the record, the extension of time, and the burden of proof regarding the 1st respondent's voter registration.
Legal principles established
#- The Court of Appeal has no jurisdiction to hear appeals from the High Court in election petitions concerning members of county assembly that originated in the magistrates' court; section 85A of the Elections Act limits election appeals to this Court to those concerning membership of the National Assembly, Senate or the office of county governor, or appeals from the High Court acting in its original jurisdiction.
- A court cannot assume appellate jurisdiction where none has been specifically granted by the Constitution or statute.
Court orders
#- 1.The appeal was dismissed for want of jurisdiction
- 2.Costs awarded to the 1st, 2nd and 3rd respondents
- On appeal from
- High Court at Milimani, Nairobi
- Election Petition Appeal No. 5 of 2018 (consolidated with Election Petition No. 1 of 2017)
- Jurisdiction invoked
- Article 164(3) of the Constitution, read with section 85A of the Elections Act and rule 4 of the Court of Appeal (Election Petition) Rules 2017 - the Court found it had NO jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Feisal Shaib Khan & another v Independent Electoral And Boundaries Commission (Iebc) & 5 others [2018] KECA 195 (KLR)[2018] KECA 195 (KLR)8 Nov 2018
Cite this brief
#Cite this brief
Caselaw, "Hamdia Yaroi Sheikh Nuri v Faith Tumaini Kombe & 2 others [2018] KECA 328 (KLR)", Case Analysis (2018). Election Petition Appeal No. 27 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/328/eng@2018-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.