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Court of AppealDismissedNotice of Motion dated 5th April 2018 (Election Petition Appeal, Court of Appeal)· [2018] KECA 657 (KLR)

Joseph Makilap Kipkoros v Independent Electoral and Boundares Commission & 2 others [2018] KECA 657 (KLR)

Court of Appeal of Kenya
26 April 2018
2,434 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 the 30-day deadline for filing an election appeal cannot be extended, so missing it ends the appeal entirely.

What this practically means

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Executive summary

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Joseph Makilap Kipkoros, who lost Election Petition No. 2 of 2017 at Kabarnet High Court and was ordered to pay Kshs. 2 million in costs, sought extension of time to file and serve his notice of appeal and record of appeal, or alternatively leave to amend the notice already filed. His notice of appeal, filed on 9th March 2018, was lodged in the High Court registry under Rule 75 of the Court of Appeal Rules, 2010, rather than within 7 days in the Court of Appeal registry under the Court of Appeal (Election Petition) Rules, 2017, and it lacked the particulars required by Rule 6(3). Counsel attributed the error to confusion caused by the multiplicity of rules governing election appeals. The respondents opposed, relying on Rule 27 (security and registry filing) and on section 85A of the Elections Act, which requires appeals from the High Court in parliamentary and gubernatorial petitions to be filed within 30 days. Okwengu, JA, held that the 2017 Rules prevail over the 2010 Rules in the event of conflict, and that while the Court may extend timelines in the Rules, it has no jurisdiction to extend the 30-day statutory timeline in section 85A, read with Article 87(1) of the Constitution, which guarantees timely settlement of electoral disputes. As the applicant had never filed a record of appeal within the statutory period, there was effectively no appeal before the Court, and granting the application would be futile. The application was dismissed with costs.

Key legal issues

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01

Applicable rules governing election petition appeals

Holding

The 2017 Rules govern election petition appeals and prevail over the 2010 Rules in case of conflict

Reasoning

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.

p. 3
02

Whether the statutory 30-day timeline for filing an election appeal is extendable

Holding

No - the Court lacks jurisdiction to extend time under section 85A of the Elections Act; only timelines in the Rules are extendable

Reasoning

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.

p. 4
03

Whether mistake of counsel in filing under the wrong rules warrants relief

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 87(1)
  • Elections Act, No. 24 of 2011section 85A
  • Court of Appeal Rules, 2010Rule 75 (referred to as section 75); timelines of 14 days for notice of appeal and 60 days for record of appeal
  • Court of Appeal (Election Petition) Rules, 2017Rules 4(2), 5, 6, 6(3), 18(2), 27, 35
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 35

Cases cited (5)

  • John Munuve Mati vs Returning Officer, Mwingi North Constituency, Independent Electoral & Boundaries Commission & Paul Musyimi Nzengu
    [2018] eKLR
  • Andrew Toboso Anyanga vs Mwale Nicholas Scott Tindi & 3 Others
    [2017] eKLR (also cited as [2016] eKLR)
  • Mary Wambui Munene vs Peter Gichuki Kingara & 2 Others
    [2014] eKLR
  • Lemanken Aramat vs Harun Meitamei Lempaka & 2 Others
    [2014] eKLR
  • Evans Odhiambo Kidero & 4 Others vs Ferdinand Ndungu Waititu & 4 Others
    [2014] eKLR
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

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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, "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.