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Court of AppealPartially AllowedElection Petition Appeal Application No. 6 of 2017· [2018] KECA 502 (KLR)

Vincent Kemosi Mogaka v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 502 (KLR)

Court of Appeal
19 June 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
598 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 that a notice of appeal in an election petition dies automatically if the full appeal isn't filed within 30 days.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Kisumu (Githinji, Okwengu and Mohammed, JJ.A.) determined an application dated 10th January 2018 by Vincent Kemosi Mogaka seeking to strike out a notice of appeal dated 21st December 2017 filed by Stephen M. Mogaka, the 3rd respondent, arising from the ruling of the High Court of Kenya at Nyamira (Makau, J.) in Petition No. 2 of 2017 delivered on 14th December 2017. The application alleged that the notice of appeal was not served within the prescribed time and that security for costs of Shs.500,000 had not been deposited. The respondents did not attend the hearing. While the application was pending, the court on its own motion issued a notice to show cause why the notice of appeal should not be struck out, since no appeal had been filed within the 30 days stipulated by section 85A(1)(a) of the Elections Act read with Rule 8(5) of the Court of Appeal (Election Petition) Rules, 2017. The 3rd respondent then filed a notice withdrawing the notice of appeal, also outside the 30-day period. The court held that once the 30 days lapsed, the notice of appeal was deemed withdrawn under Rule 83 of the Court of Appeal Rules and no competent appeal could be filed. It allowed the application, but not on the grounds pleaded - rather because the statutory period had expired - and struck out the notice of appeal, ordering the 3rd respondent to pay costs to the respondents. The ruling does not disturb the High Court's decision; it concerns only the fate of the incompetent notice of appeal.

Key legal issues

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01

Consequence of failure to file an appeal within the statutory 30-day period in an election petition appeal

Holding

Where no appeal is filed within 30 days, the notice of appeal is deemed withdrawn under Rule 83 and must be struck out as no competent appeal can be filed.

Reasoning

Section 85A(1)(a) of the Elections Act read with Rule 8(5) of the Court of Appeal (Election Petition) Rules, 2017 prescribes a 30-day window for filing an appeal from an election court. The 3rd respondent filed only a notice of appeal and, well outside the 30 days, a notice of withdrawal. Once the period lapsed, no competent appeal could be filed, making striking out the appropriate order even on the court's own motion.

p. 2

Legal principles established

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  • If no appeal is filed within the 30 days stipulated by section 85A(1)(a) of the Elections Act as read with Rule 8(5) of the Court of Appeal (Election Petition) Rules, 2017, the notice of appeal is deemed withdrawn under Rule 83 of the Court of Appeal Rules and no competent appeal can be filed.
  • A notice of appeal in an election petition matter may be struck out by the court on its own motion where the statutory 30-day period for filing the appeal has lapsed.

Court orders

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  1. 1.The notice of appeal dated 21st December 2017 and filed in Court on the same day is struck out for the reason that no appeal was filed within the statutorily stipulated 30 days
  2. 2.The 3rd respondent Stephen M. Mogaka shall pay costs of the application to the respondents

Authorities

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Legislation

  • Elections Actsection 85A(1)(a)
  • Court of Appeal (Election Petition) Rules, 2017Rule 8(5)
  • Court of Appeal RulesRule 83
On appeal from
High Court of Kenya at Nyamira
Petition No. 2 of 2017
Jurisdiction invoked
Court of Appeal (Election Petition) Rules, 2017; Elections Act, section 85A(1)(a); Rule 83 of the Court of Appeal Rules

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, "Vincent Kemosi Mogaka v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 502 (KLR)", Case Analysis (2018). Election Petition Appeal Application No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/502/eng@2018-06-19

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