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Court of AppealStruck OutElection Petition Civil Appeal No. 30 of 2018· [2018] KECA 453 (KLR)

Evans Nabwera Taracha v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2018] KECA 453 (KLR)

Court of Appeal of Kenya
18 July 2018
EGE. M. GithinjiHOH. M. OkwenguJMJ. Mohammed
2,001 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an election appeal filed two days late, confirming the 30-day deadline is absolute and cannot be excused.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Kisumu (Githinji, Okwengu and J. Mohammed, JJ.A) striking out an election petition appeal against the decision of the election court (Janet Mulwa, J.) of 2nd March 2018, which had dismissed the appellant's petition challenging the election of Enock Wamalwa Kibunguchy as Member of the National Assembly for Likuyani Constituency. The 1st and 2nd respondents moved to strike out the appeal on the ground that the record of appeal, filed on 5th April 2018, was outside the thirty days prescribed by section 85A(1)(a) of the Elections Act; the 3rd respondent made a similar application. The Court determined the jurisdictional question first, applying the principle in Owners of Motor Vessel 'Lilian S'. It held that the thirty-day period is a mandatory statutory limit; that computation is governed by section 57 of the Interpretation and General Provisions Act rather than Rule 3 of the Court of Appeal Rules, 2010; and that with Easter Sunday and Easter Monday as excluded days, the deadline fell on 3rd April 2018. The appeal, filed on 5th April, was two days late - a fact conceded by the appellant's counsel. Relying on Wavinya Ndeti (Court of Appeal and Supreme Court) and the Supreme Court's decision in Aramat's case, the Court held that an appeal filed outside the mandatory period is not an appeal in law, that the Court has no jurisdiction to entertain it, and that Article 159(2)(d) of the Constitution does not apply to statutory electoral timelines. The applications were allowed, the appeal struck out, and costs awarded to the respondents. The decision of the election court was therefore left undisturbed.

Key legal issues

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01

Jurisdiction over an appeal filed outside the statutory thirty-day period

Holding

The appeal filed on 5th April 2018 was two days outside the thirty days prescribed by section 85A(1)(a) as computed under section 57 of the Interpretation and General Provisions Act (Easter Sunday and Easter Monday being excluded days). The filing was out of time and conceded by the appellant's counsel. Such a filing is not an appeal in law and the Court lacks jurisdiction to entertain it.

Reasoning

The court applied the principle in Owners of Motor Vessel 'Lilian S' that jurisdiction must be determined first. Section 85A(1)(a), having been sanctioned by the Constitution, imposes a mandatory time limit. Rule 17(2) of the Court Rules, 2017 ousts the court's discretion to extend timelines set by statute. An out-of-time filing extinguishes the right of appeal, leaving the Court without jurisdiction; the merits and the competency of the record need not be considered.

p. 3
02

Governing law for computation of the statutory thirty-day period

Holding

The time for filing an election petition appeal is prescribed by statute (section 85A(1)(a) of the Elections Act), and computation is governed by section 57 of the Interpretation and General Provisions Act, not Rule 3 of the Court of Appeal Rules, 2010, which applies only to time fixed by the Rules themselves.

Reasoning

Rule 3 of the Court of Appeal Rules, 2010 applies to periods fixed by those Rules or by a decision of the Court, not to periods fixed by the Constitution or the Elections Act. Rule 9(1) of the Court Rules, 2017 merely reiterates section 85A(1)(a). Rule 17(2) expressly excludes extension of timelines set by the Constitution and the Elections Act. Computation under section 57 excludes the day of the decision and includes excluded days.

p. 3
03

Applicability of Article 159(2)(d) of the Constitution

Holding

Article 159(2)(d) does not apply because the failure to file within the statutory time is not a mere procedural irregularity; the right of appeal is extinguished on expiry of the statutory period.

Reasoning

Relying on the Supreme Court's decision in Aramat's case, the Court held that Article 159 does not apply to statutory timelines in electoral disputes because the issue is one of jurisdiction, not procedural compliance. This position had been affirmed by this Court in Wavinya Ndeti and by the Supreme Court on appeal in the same matter.

p. 3

Legal principles established

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  • An appeal to the Court of Appeal in an election petition must be filed within thirty days of the decision of the election court as prescribed by section 85A(1)(a) of the Elections Act, and this requirement is mandatory
  • An appeal filed outside the statutory time limit is not an appeal in law and the Court of Appeal has no jurisdiction to entertain it
  • Computation of the thirty-day period under section 85A(1)(a) of the Elections Act is governed by section 57 of the Interpretation and General Provisions Act, not Rule 3 of the Court of Appeal Rules, 2010
  • Constitutional principles of access to justice and fair hearing do not affect the statutory time limitation in section 85A(1)(a), and Article 159 of the Constitution does not apply to statutory electoral timelines

Court orders

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  1. 1.The applications of the 1st and 2nd respondents and of the 3rd respondent are allowed
  2. 2.The appeal is struck out
  3. 3.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 87(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 259
  • Elections Act, No. 24 of 2011Section 85A(1)
  • Interpretation and General Provisions ActSection 57
  • Court of Appeal (Election Petition) Rules, 2017Rule 9(1)
  • Court of Appeal (Election Petition) Rules, 2017Rule 17(1) and 17(2)
  • Court of Appeal (Election Petition) Rules, 2017Rule 4(2)
  • Court of Appeal (Election Petition) Rules, 2017Rule 18
  • Court of Appeal Rules, 2010Rule 3

Cases cited (7)

  • Owners of Motor Vessel “Lilian S” v. Caltex Oil (K) Limited
    [1989] KLR 1
  • Wavinya Ndeti v. Independent Electoral & Boundaries Commission (IEBC) & 4 others
    [2014] eKLR
  • Ferdinard Ndungu Waititu v. Independent Electoral & Boundaries Commission, IEBC & 8 Others
    [2015] eKLR
  • Evans Odhiambo Kidero & 5 Others v Ferdinard Ndungu Waititu and others
    Supreme Court Petition No. 8 of 2014 (consolidated with Petition No. 20 of 2014)
  • Wavinya Ndeti v. Independent Electoral & Boundaries Commission (IEBC) & 4 Others
    [2015] eKLR
  • Gitirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Lemankenu Aramat v. Harun Meitamei Lempaka & 2 Others
    [2014] eKLR
On appeal from
High Court of Kenya at Kakamega
Election Petition No. 5 of 2017
Jurisdiction invoked
Section 85A of the Elections Act, No. 24 of 2011 - appeal from the High Court in an election petition to the Court of Appeal on matters of law only

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, "Evans Nabwera Taracha v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2018] KECA 453 (KLR)", Case Analysis (2018). Election Petition Civil Appeal No. 30 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/453/eng@2018-07-18

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