Mwamlole Tchapu Mbwana v The Independent Electoral and Bounderies Commission (iebc) & 1 other
The bottom line
#Kenya's Court of Appeal ruled that voters cannot take over an election appeal after the original appellant withdraws it, because no law allows substitution.
What this practically means
#Executive summary
#Key legal issues
#Whether Rule 24 of the Election Petition Rules (substitution on withdrawal of a petition) applies to election petition appeals
It does not. The Election Petition Rules apply to petitions in the Election Court; the omission of a substitution provision from the Election Appeal Rules was deliberate and the Court cannot legislate.
The Court construed the applicable rules. Rule 3 of the Election Petition Rules confines them to petitions in the Election Court; Rule 4(2) of the Election Appeal Rules invokes the Court of Appeal Rules for civil appeals. Because the Rules Committee made both sets of rules at the same time, the absence of a substitution provision in the Election Appeal Rules was deliberate. Citing Potter, JA, the judiciary's function is to interpret, not make, law.
Effect of a consented withdrawal of an appeal under Rule 96 of the Court of Appeal Rules
The appellant complied with Rule 96; where all parties consent, leave is unnecessary and upon filing the consent the appeal is struck out and ceases to exist.
Rule 96(3) provides that on a consent signed by the parties the appeal is struck out from the list of pending appeals; leave under Rule 96(4) is only needed where parties do not consent. The applicants were never parties to the appeal, so their consent was not required. The appeal had therefore ceased to exist before the substitution application was made.
Strict interpretation of electoral law
Electoral law is sui generis and must be strictly interpreted within the Constitution and electoral statutes; a self-contained electoral code cannot be supplemented by importing foreign procedural rules.
Restating its own earlier decision in Mbaraka Issa Kombe, the Court held that electoral law is a special jurisdiction strictly confined to the Constitution and relevant electoral statutes. To import the Election Petition Rules would be to donate to itself jurisdiction it does not have, contrary to Samuel Kamau Macharia.
Legal principles established
#- There is no procedural provision permitting substitution of an appellant who withdraws an election petition appeal; the Election Petition Rules apply only to petitions in the Election Court, and the applicable rules on appeal are the Election Appeal Rules and the Court of Appeal Rules.
- Where all parties to an appeal consent to its withdrawal under Rule 96(3) of the Court of Appeal Rules, no leave of the Court is required and the appeal stands withdrawn and struck out upon filing of the consent.
- Once a consent to withdraw an appeal is filed, the appeal ceases to exist and the Court cannot entertain a subsequent application for substitution.
Court orders
#- 1.Dismissal of the applicants' application for substitution with costs to the appellant and respondents
- 2.The appellant's appeal struck out from the list of pending appeals in the Court
- 3.Security for costs refunded to the appellant
- On appeal from
- Election Court (High Court), Mombasa
- Election Petition No. 5 of 2017
- Jurisdiction invoked
- Articles 164(3)(a) and 22(4) of the Constitution and Section 85A(1) of the Elections Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwamlole Tchapu Mbwana v The Independent Electoral and Bounderies Commission (iebc) & 1 other", Case Analysis (2018). Election Petition Appeal (Election Court Mombasa Election Petition No. 5 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/629/eng@2018-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.