Mohamed Abdul Omar v Kiponda Joseph Joseppe Ngumbao & 3 others [2019] KECA 836 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it has no power to hear second appeals in MCA election disputes, and struck this appeal out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the decision of the five-Judge bench in Mohammed Ali Sheikh binds this three-Judge bench on the jurisdictional question
- 2.Whether the Court of Appeal has jurisdiction under Section 85A of the Elections Act to entertain a second appeal in respect of an election of a Member of County Assembly
- 3.Whether the appellant has an automatic right of appeal to the Supreme Court under Article 163(4) of the Constitution that would justify keeping the appeal alive
Key legal issues
#Whether the Court of Appeal may entertain a second appeal in an election of a Member of County Assembly
It may not; the five-Judge bench decision settles that the Court lacks jurisdiction, and that decision binds this bench.
A five-Judge bench, specially constituted by the President of the Court to resolve a live jurisdictional question recurring in several appeals, unanimously held that Section 85A of the Elections Act does not confer jurisdiction on the Court of Appeal to hear second appeals in MCA elections. Parties had agreed to hold this appeal in abeyance pending that determination. Once determined, the decision binds this bench, leaving striking out as the only available course.
Whether the appellant's claim of an automatic right of appeal to the Supreme Court under Article 163(4) saves the appeal
It does not save the appeal; the respondents argued striking out would not deprive the appellant of that right, and the Court struck out the appeal regardless.
The appellant's counsel argued the appeal was his only route to the Supreme Court because a constitutional issue was said to arise from the five-Judge bench decision. Counsel for the 1st and 2nd respondents countered that the binding five-Judge decision was dispositive and that striking out the appeal would not deprive the appellant of his right to appeal to the Supreme Court. The Court did not entertain the constitutional-issue argument and applied the binding jurisdictional ruling.
Legal principles established
#- The Court of Appeal has no jurisdiction to entertain second appeals in respect of elections of Members of County Assembly under Section 85A of the Elections Act.
- A decision of a full (five-Judge) bench of the Court of Appeal on a jurisdictional question binds a three-Judge bench of the same Court.
Court orders
#- 1.The appeal is struck out for want of jurisdiction
- 2.The appellant shall pay the costs of the appeal to the 1st and 2nd respondents
- 3.No costs are awarded to the 3rd and 4th respondents, who did not take an active part in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Malindi
- H.C. Election Petition Appeal No. 5 of 2018
- Jurisdiction invoked
- Section 85A of the Elections Act (as construed by the five-Judge bench in Mohammed Ali Sheikh vs. Abdiwahab Sheikh Osman Hathe & others; Emmanuel Chagao Kombe (interested party) [2018] eKLR) - the Court of Appeal lacks jurisdiction to hear second appeals in elections of Members of County Assembly
Relief refused
#Appellant's request to keep the appeal alive pending a fresh five-Judge bench consideration of the jurisdictional issue and to preserve an alleged automatic right of appeal to the Supreme Court under Article 163(4)
The decision of the five-Judge bench binds this Court, and it lacks jurisdiction to hear second appeals in MCA elections; striking out the appeal does not deprive the appellant of the right to appeal to the Supreme Court
Costs
The appellant shall pay the costs of the appeal to the 1st and 2nd respondents; as the 3rd and 4th respondents did not take an active part in the appeal, no costs are awarded to them.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we are clear in our minds that the decision by the five Judge bench is binding upon us
the full bench of this Court unanimously found that the Court lacked the jurisdiction to hear second appeals with respect to an election of a Member of County Assembly
the only available option to us is to strike out the appeal for want of jurisdiction, which we hereby do
As the 3rd and 4th respondents did not take an active part in the appeal, we shall award no costs to them.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Abdul Omar v Kiponda Joseph Joseppe Ngumbao & 3 others [2019] KECA 836 (KLR)", Case Analysis (2019). Election Petition Appeal (Application) No. 11 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/836/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.