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Court of AppealDismissedCivil Application (as stated on the motion dated 5th March, 2018; motion dated 20th February, 2018)· [2018] KECA 486 (KLR)

Seth Ambusini Panyako v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 486 (KLR)

Court of Appeal of Kenya
21 June 2018
JMJ. Mohammed
2,536 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 confirmed it cannot extend the 30-day deadline for filing election petition appeals, so a missed deadline ends the appeal entirely.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu delivered by J. Mohammed, JA, on 21st June, 2018, on a notice of motion by Seth Ambusini Panyako seeking extension of time to file and serve the record of appeal and memorandum of appeal. The applicant had lost Election Petition No. 014 of 2017 at the Kakamega High Court, where his petition challenging the election of Cleophas Wakhungu Malalah as Senator for Kakamega County was struck out as incurably defective, with costs of Kshs. 3 million awarded against him. He filed a notice of appeal on 28th December, 2017 but never filed a record of appeal within the thirty days prescribed by section 85A(1)(a) of the Elections Act. All three respondents opposed the motion, contending that the Court has no jurisdiction to extend the mandatory statutory timelines. The Court agreed. Relying on Wavinya Ndeti v IEBC, Lemanken Aramat, Kidero v Waititu and Jane Wambui Mwaura, it held that section 85A is substantive law conferring both the right of appeal and jurisdiction; the thirty-day timeline is mandatory, cast in stone, and admits of no enlargement, and the general discretion under Article 159 does not apply. Since no record of appeal had been filed, there was no appeal before the Court. The motion was dismissed with costs.

Key legal issues

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01

Whether the Court can extend time for filing an election petition appeal beyond the 30 days in section 85A(a) of the Elections Act

Holding

The Court has no jurisdiction to extend time; the timeline is mandatory and cast in stone, and once it lapses no appeal exists before the Court.

Reasoning

Section 85A(a) requires an election petition appeal to be filed within thirty days of the High Court decision. Following Wavinya Ndeti, Lemanken Aramat and Kidero v Waititu, the provision is substantive, conferring both right of appeal and jurisdiction, and is mandatory. Parliament gave the Court no power to extend time, and Article 159 discretion does not apply to such elemental timeframes.

p. 5
02

Effect of the applicant's failure to file a record of appeal within the statutory period

Holding

Failure to file the record of appeal within 30 days of the decision means there is no appeal before the Court.

Reasoning

The notice of appeal was filed on 28th December, 2017, so the appeal ought to have been filed by 27th January, 2018. As at the date of the ruling no record of appeal had been filed, which effectively meant there was no appeal before the Court, leaving the Court with nothing to exercise discretion over.

p. 4

Legal principles established

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  • The 30-day timeline in section 85A(1)(a) of the Elections Act for filing an appeal from the High Court in an election petition is mandatory and the Court of Appeal has no jurisdiction to extend time.
  • Section 85A is substantive law conferring both the right of appeal and jurisdiction, and Parliament did not give the Court power to extend time under it.
  • Statutory timelines in election disputes open the jurisdiction of the courts and cannot be circumvented through the general discretion under Article 159 of the Constitution.

Court orders

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  1. 1.The motion dated 20th February, 2018 is dismissed with costs

Authorities

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Legislation

  • Elections Actsection 85A(1)(a)
  • Elections Actsection 75(4)
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rule 8
  • Court of Appeal (Election Petition) Rules, 2017Rule 5(a), Rule 14(2), Rule 15(1), Rule 15(5)
  • Constitution of Kenya, 2010Article 105(2)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 87(1)

Cases cited (8)

  • Nicholas Kiptoo Arap Salat Vs IEBC & 7 Others
    [2014] eKLR
  • Abdirahman Abdi also known as Abdi Rahman Muhumed Abdi Vs Safi Petroleum Products Ltd & 6 Others
    Civil Application No Nai 173 of 2010
  • Gatirau Peter Munya Vs. Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Evans Odhiambo Kidero Vs Ferdinand Ndung'u Waititu and 4 Others
    Supreme Court Petition No. 18 of 2014, [2014] eKLR
  • Martha Vs Said & Another
    Civil Appeal No. 292 of 1998 (200) 2KLR (EP 33)
  • Wavinya Ndeti Vs. IEBC & 4 Others
    [2014] eKLR
  • Lemanken Aramat Vs. Harun Meitamei Lempaka & 2 Others
    [2014] eKLR
  • Jane Wambui Mwaura Vs The IEBC & 2 Others
    Civil Application No. 18 of 2018 (UR 13/2018)
On appeal from
High Court of Kenya at Kakamega
Election Petition No. 014 of 2017
Jurisdiction invoked
Section 85A(1)(a) of the Elections Act read with Article 164(3) of the Constitution (appellate jurisdiction of the Court of Appeal over election petitions)

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, "Seth Ambusini Panyako v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 486 (KLR)", Case Analysis (2018). Civil Application (as stated on the motion dated 5th March, 2018; motion dated 20th February, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/486/eng@2018-06-21

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