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Court of AppealStruck OutElection Petition Appeal No. 21 of 2018· [2018] KECA 411 (KLR)

Abdikadir Farah Mohammed & 1 other v Independent Electoral and Boundaries Commission & 3 others

Court of Appeal of Kenya
27 July 2018
5,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out an election appeal because the notice of appeal missed the strict deadlines and format — no exceptions allowed.

What this practically means

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Executive summary

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This was an election petition appeal arising from the dismissal by the High Court at Garissa (Ougo, J) of a petition challenging the election of Mohamed Yusuf Haji as Senator for Garissa County in the August 2017 general elections. Before hearing the main appeal, the Court of Appeal (Waki, Makhandia and Murgor, JJ.A) dealt with three interlocutory applications and a preliminary objection. The sole remaining appellant, Mohamed Aden Abdi, sought extension of time to file a notice of appeal and leave to amend the record of appeal; IEBC raised a preliminary objection on jurisdiction, and Haji sought striking out of the notice and record of appeal. The Court held that the document headed 'Notice of Appeal' was a nullity: it was filed in the High Court registry rather than the Court of Appeal registry, was in the form of Rule 75 of the 2010 Rules contrary to Rule 4(3) of the 2017 Election Petition Rules, lacked numbered paragraphs specifying grounds of law, was filed outside the seven-day period and served late. Since a notice of appeal is a jurisdictional prerequisite, no valid appeal existed upon which the Rule 17 discretion to extend time could operate, and the Court had no jurisdiction to extend the expired 30-day statutory timeline under section 85A of the Elections Act. Article 159(2)(d) could not cure such a jurisdictional defect, electoral disputes being sui generis and subject to strict timelines. The appellant's applications were dismissed, IEBC's preliminary objection was upheld, the record of appeal was struck out, and costs were awarded against the appellant.

Key legal issues

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01

Validity of the notice of appeal under the Court of Appeal (Election Petition) Rules, 2017

Holding

The document headed 'Notice of Appeal' was filed in the High Court registry, was in the form of Rule 75 of the 2010 Rules, lacked numbered paragraphs and grounds of law, and was filed out of time; it answered to none of the prerequisites of Rule 6 of CAR 2017 and was a nullity.

Reasoning

Rule 4(3) of CAR 2017 provides that where the 2017 Rules conflict with the 2010 Rules on election petition appeals, the 2017 Rules prevail. Rule 6 requires the notice to be lodged in quadruplicate in the Court of Appeal registry within seven days, in numbered paragraphs specifying the grounds of law, in Form EPA 1. The document filed met none of these requirements, was filed 13 days after judgment, and was served late. It therefore could not found the Court's jurisdiction.

p. 7
02

Whether the Court could extend time where no valid notice of appeal exists

Holding

The Court's power to extend time under Rule 17 of CAR 2017 presupposes a notice of appeal properly lodged before the Court; absent a valid notice, the discretion cannot be invoked and the Court must decline jurisdiction.

Reasoning

The Court distinguished John Munuve Mati, where extension of time was properly considered because a notice of appeal, albeit late, had actually been filed. Here the document filed was a nullity, so there was nothing upon which the Rule 17 discretion could operate. The 30-day statutory window under section 85A of the Elections Act had expired and could not be extended by the Court.

p. 6
03

The sui generis and strict nature of electoral dispute jurisdiction

Holding

Election petitions and appeals are sui generis statutory proceedings to which the common law, equity and the lenient doctrines applicable to ordinary civil appeals do not apply unless statutorily embodied; timelines are strict and a breach removes the dispute from the Court's jurisdiction.

Reasoning

Relying on Apungu Arthur Kibira, Rozaah Akinyi Buyu, Tyota Basu v Debi Ghosal and Lemanken Aramat, the Court held that electoral jurisdiction is rooted in Article 164(3) and operationalized through legislation under Article 87(1); the rules are normative derivatives of the Constitution. The Court of Appeal's wide civil-appeal discretion under sections 3A and 3B of the Appellate Jurisdiction Act does not apply, and Article 159(2)(d) cannot override jurisdictional prerequisites in electoral disputes.

p. 5

Legal principles established

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  • A notice of appeal is a jurisdictional prerequisite; without a valid notice of appeal filed in accordance with the election petition rules, the Court has no jurisdiction to extend time or entertain an election petition appeal.
  • In election petition appeals, where the 2017 Rules conflict with the 2010 Rules, the 2017 Rules prevail; a notice of appeal must be lodged in the Court of Appeal registry within seven days in the prescribed Form EPA 1.
  • The Court has no jurisdiction to extend the 30-day statutory timeline for filing an election petition appeal under section 85A of the Elections Act after it has expired.
  • Article 159(2)(d) of the Constitution is not a panacea for procedural shortfalls and cannot cure a jurisdictional defect such as the failure to file a valid notice of appeal in an election dispute.

Court orders

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  1. 1.The notice of motion by Mohamed Aden Abdi dated and filed on 9th April, 2018 dismissed
  2. 2.The notice of motion by Mohamed Aden Abdi dated and filed on 17th April, 2018 dismissed
  3. 3.The notice of preliminary objection filed by the Independent Electoral and Boundaries Commission and the Returning Officer, Garissa County (1st & 2nd respondents), on 8th June 2018 upheld
  4. 4.The record of appeal dated and filed in the Court of Appeal at Nairobi on 29th March, 2018 struck out
  5. 5.The costs of the applications and the struck out appeal to be borne by Mohamed Aden Abdi, the sole remaining appellant
On appeal from
High Court of Kenya at Garissa
Election Petition No. 12 of 2017
Jurisdiction invoked
Section 85A of the Elections Act and Article 164(3) of the Constitution

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, "Abdikadir Farah Mohammed & 1 other v Independent Electoral and Boundaries Commission & 3 others", Case Analysis (2018). Election Petition Appeal No. 21 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/411/eng@2018-07-27

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