David Kipsang Keter v Johana Kipyegon Ngeno & 2 others [2018] KECA 587 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed election appeal deadlines are strict: filing late, or in the wrong registry, ends the appeal outright.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the notice of appeal
The notice of appeal filed on 22nd February 2018 was out of time, judgment having been delivered on 7th February 2018; rule 6(2) mandatorily requires filing within 7 days
The court held that the 7-day period in rule 6(2) is mandatory. A notice filed 15 days after judgment cannot initiate a competent appeal, and the applicant's submission that the notice was filed on time was wrong. Counsel for the 1st respondent's submission on lateness was upheld.
Place of filing the notice of appeal
The notice was filed at the High Court at Narok instead of the registry of the Court of Appeal as required by the rules, so it did not comply with rule 6
Rule 2 defines 'registry' as the registry of the Court of Appeal including a sub-registry. The document lodged with the Deputy Registrar of the High Court at Narok did not conform with rule 6, compounding the defect of lateness.
Applicability of ordinary extension-of-time principles and discretion under Article 159(2)(d)
The ordinary Fakir Mohammed principles do not apply to election matters; no discretion could be exercised in the applicant's favour given the mandatory statutory timelines
The court distinguished election disputes as a special jurisdiction created by the Constitution, the Elections Act and the 2017 Election Petition Rules. The Supreme Court authorities establish that Section 85A timelines are neither negotiable nor extendable, and that ordinary procedural rules are supplementary only.
Legal principles established
#- A notice of appeal in an election petition appeal must be filed in the Court of Appeal registry within 7 days of the decision appealed against; filing in the High Court registry is non-compliant
- Timelines set by the Constitution and the Elections Act for election appeals cannot be extended by the court
- Election matters are governed by a special jurisdiction; the ordinary extension-of-time principles do not apply
Court orders
#- 1.The motion dated 3rd May, 2018 is dismissed
- 2.Costs of the motion awarded to the respondents
- On appeal from
- High Court of Kenya at Narok
- Election Petition No. 2 of 2017
- Jurisdiction invoked
- Court of Appeal (Election Petition) Rules 2017, rule 4(2)(3) and rule 5; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kipsang Keter v Johana Kipyegon Ngeno & 2 others [2018] KECA 587 (KLR)", Case Analysis (2018). Motion on Notice dated 3rd May, 2018 (Court of Appeal, election petition application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/587/eng@2018-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.