Nyutu Peter Kamau v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 423 (KLR)

Rule 6 of the Court of Appeal (Election Petition) Rules, 2017 requires the notice of appeal to be lodged in the registry of the Court of Appeal within seven days. Filing a notice of appeal is a jurisdictional prerequisite; a court's jurisdiction flows from the Constitution, statute or precedent, and without jurisdiction a court downs its tools. Article 159(2)(d) is not a panacea for procedural shortfalls and applies on a case-by-case basis. Following its own recent ruling in Musa Cherutich Sirma, the court held the appeal incompetent.

The twelve grounds of appeal questioned both legal and factual findings of the trial Judge. The court reaffirmed that under the Elections Act its review of election petition appeals is confined to questions of law. The appellant's complaints about credibility of witnesses, alterations to Forms 35A and failure to call agents were matters of fact and evidence evaluated by the trial court, which the appellate court could not revisit.

The appellant's witnesses gave no direct evidence of any wrongdoing: the campaign manager witnessed no bribery; one witness admitted receiving money for transport and recanted; another hostile witness saw nothing. Agents alleged to have been denied entry were never called, and Forms 35A bore their signatures showing they were present. The Returning Officer explained the apparent discrepancies in the forms as artefacts of photocopying, with alterations counter-signed by presiding officers and agents. No evidence of bribery or violence was adduced.