Nyutu Peter Kamau v Independent Electoral and Commission & 2 others [2018] KECA 395 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an MP election appeal because the notice of appeal was filed in the wrong court registry, proving procedure can defeat even substantive election claims.
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 appeal was competent given that the Notice of Appeal was lodged in the High Court registry rather than the registry of the Court of Appeal as required by the Court of Appeal (Election Petition) Rules, 2017
- 2.Whether the memorandum of appeal raising mixed questions of law and fact was within the appellate jurisdiction conferred by the Elections Act
- 3.Whether the trial judge erred in dismissing the petition and declining scrutiny, recount, an adjournment and admission of video evidence
Key legal issues
#Competence of the appeal - defective lodging of Notice of Appeal
The appeal was incompetent because the Notice of Appeal was filed in the High Court registry instead of the Court of Appeal registry as required by Rule 6 of the Court of Appeal (Election Petition) Rules, 2017.
Rule 6 requires the notice to be lodged in the registry of the Court of Appeal within seven days. The notice was lodged at the High Court at Embu. Filing a timely notice of appeal in the correct registry is a jurisdictional prerequisite. The court could not cure the defect under Article 159, though it nonetheless addressed the other issues raised.
Scope of appellate jurisdiction under the Elections Act
The memorandum of appeal was fraught with matters of fact over which the Court of Appeal has no jurisdiction in election petition appeals.
The Elections Act limits appeals to issues of law. Twelve grounds questioning both legal and factual findings could not be entertained to the extent they challenged credibility of witnesses and factual findings. The court found no legal basis for interfering with the trial judge's evaluation of the evidence.
Proof of election irregularities, bribery and denial of agents' access
The appellant failed to prove any of the allegations; the trial judge correctly dismissed the petition.
Witnesses called by the appellant were found not credible and gave no direct evidence; the campaign manager witnessed no bribery; Forms 35A bore the signatures of the appellant's own agents, disproving denial of access; alterations on forms were counter-signed and did not affect results.
Legal principles established
#- A notice of appeal in an election petition appeal must be lodged in the registry of the Court of Appeal, not the High Court registry; without a valid Notice of Appeal the appeal does not lie.
- The Court of Appeal has jurisdiction over election petition appeals only on issues of law, not fact.
- Article 159(2)(d) is not a panacea for procedural shortfalls and applies on a case by case basis.
Court orders
#- 1.Appeal dismissed
- 2.Costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Embu
- Election Petition No. 3 of 2017
- Jurisdiction invoked
- Elections Act, No. 24 of 2011 (appeals from election petitions limited to issues of law) read with Article 164 of the Constitution
Relief refused
#Nullification of the election of the 3rd respondent as Member of Parliament for Mbeere South Constituency
No evidence proved any irregularity, bribery, violence or denial of agents' access; none of the petition allegations were proved
Scrutiny and recount of votes
No basis was established before the trial court and no application, oral or written, was made
Admission of video evidence / adjournment
No basis had been laid for allowing further evidence
Costs
Appeal dismissed with costs to the respondents
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.
We have not found any merit in this appeal which we dismiss with costs to the respondents.
The Notice of Appeal filed at the High Court of Kenya, Embu to challenge the judgment of the High Court was incompetent as it was not filed in this Court as required by the Rules.
As noted by the Court of Appeal the filing of a timely notice of appeal is a jurisdictional prerequisite unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal
It is plain to us that Article 159 (2) (d) is applicable on a case by case basis.
Issues in the judgment
#The judgment alternately describes the election as held on 8th August 2018 and 8th August 2017
The coram states the Court of Appeal at Nyeri but the judgment is stated as delivered at Nairobi
The judgment states the High Court judgment was dated 14th February, 2017 in the title but 14th February, 2018 in the body
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyutu Peter Kamau v Independent Electoral and Commission & 2 others [2018] KECA 395 (KLR)", Case Analysis (2018). Election Petition Appeal No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/395/eng@2018-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.