Joseph Makilap Kipkoros v Independent Electoral and Boundares Commission & 2 others [2018] KECA 657 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the 30-day deadline for filing an election appeal cannot be extended, so missing it ends the appeal entirely.
What this practically means
#Executive summary
#Key legal issues
#Applicable rules governing election petition appeals
The 2017 Rules govern election petition appeals and prevail over the 2010 Rules in case of conflict
The 2017 Rules are dedicated to election petition appeals to give effect to an overriding constitutional value of timely resolution, and rule 4(2) expressly provides they prevail on conflict. The 2010 Rules apply only to fill gaps in the 2017 Rules.
Whether the statutory 30-day timeline for filing an election appeal is extendable
No - the Court lacks jurisdiction to extend time under section 85A of the Elections Act; only timelines in the Rules are extendable
The 30-day period in section 85A, read with Article 87(1) of the Constitution, is a strict statutory timeline reflecting the constitutional requirement of timely settlement of electoral disputes. Discretion under the Rules cannot override express statutory provisions. Failure to file the record of appeal within 30 days means there is no appeal before the Court.
Whether mistake of counsel in filing under the wrong rules warrants relief
No - the discretion was not exercised in the applicant's favour because extending time for the notice would be futile without an extendable right to file the record of appeal
While the Court acknowledged the confusion caused by the multiplicity of rules and that it has discretion to extend rule-based timelines, precedents where extension was granted involved applicants who had already filed records of appeal. Here no record of appeal existed, distinguishing the case and rendering relief futile.
Legal principles established
#- Where the Court of Appeal (Election Petition) Rules, 2017 conflict with the Court of Appeal Rules, 2010, the 2017 Rules prevail
- The Court has discretion to extend timelines provided in the 2017 Rules, but that discretion cannot be used to extend the express statutory timelines in section 85A of the Elections Act
- Timelines for election dispute resolution are strict and Article 159 does not apply to cure non-compliance with them
Court orders
#- 1.The applicant's Notice of Motion dated 5th April 2018 seeking extension of time to file and serve the notice of appeal and record of appeal, or leave to amend the notice of appeal, is dismissed
- 2.Costs of the application to the respondents
- On appeal from
- High Court of Kenya at Kabarnet
- Election Petition No. 2 of 2017
- Jurisdiction invoked
- Court of Appeal (Election Petition) Rules, 2017, Rule 5 (discretion to excuse non-compliance); section 85A of the Elections Act; Article 87(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Makilap Kipkoros v Independent Electoral and Boundares Commission & 2 others [2018] KECA 657 (KLR)", Case Analysis (2018). Notice of Motion dated 5th April 2018 (Election Petition Appeal, Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/657/eng@2018-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.