Jeremiah Nyangwara Matoke v Independent Electoral and Boundaries Commission (IEBC) & 2 others [2018] KECA 451 (KLR)

The Court compared Rule 35 of the 2017 Petition Rules with Rule 4 of the 2017 Court Rules and found an apparent contradiction created when Rule 35 was retained from the 2013 Petition Rules. Reading the 2017 Court Rules as a whole, Rule 4(1) makes them the governing rules, Rule 4(2) admits the 2010 Rules only to fill gaps, and Rule 4(3) gives the 2017 Rules precedence on conflict. The Court agreed with its prior decision in John Munuve Mati and held the retention of Rule 35 inadvertent.

The Court computed the timelines from the judgment date of 22nd February 2018 using Rule 6(2), Rule 7 and Rule 9(1) of the 2017 Court Rules. It held that under section 85A(1)(a) an appeal is filed only when the record of appeal is lodged, so the ten-day delay rendered the appeal fatally out of time. The Court noted the one-day late notice was an infraction it could have excused, but the record's delay went to the statutory timeline.

Relying on Wavinya Ndeti v IEBC, the Court held that section 85A deals with substantive law, conferring both the right of appeal and jurisdiction, and that Parliament intended it to be mandatory. Rule 5 of the 2017 Court Rules allows the Court discretion over non-compliance with the Rules, but Rule 17(2) expressly excludes timelines set by the Constitution and the Elections Act from the extension power. The delayed appeal was therefore incompetent and was struck out without consideration of the merits.