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Court of AppealStruck OutElection Petition Appeal No. 40 of 2018

Damaris Nyarangi Mouni v Wafula Chebukati, Chairman IEBC & 3 others [2019] KECA 968 (KLR)

Court of Appeal
14 February 2019
2,120 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed it cannot hear second appeals in Kenya's county assembly election cases, so the appellant's challenge to her de-gazettement was struck out.

What this practically means

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Executive summary

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The appellant, Damaris Nyarangi Mouni, was gazetted as a nominated member of the Nyamira County Assembly through the ODM gender top up list and sworn in on 7th September 2017. A day later, the IEBC Chairman gazetted her deletion and substituted the 3rd respondent. The appellant's petition challenging the de-gazettement was dismissed by the Chief Magistrate's Court, and her appeal was dismissed by the High Court (Maina J), which found she had not been validly nominated and that her inclusion in the party list was procured by fraud. She then filed the present appeal in the Court of Appeal. Before hearing the substantive appeal, the Court directed parties to address the threshold question of its own jurisdiction, in light of its recent decisions, notably the five judge Bench decision in Mohammed Ali Sheikh v Abdiwahab Sheikh Osman Hathe. After hearing submissions, the Court reaffirmed its consistent position that section 85A of the Elections Act does not confer a right of second appeal to the Court of Appeal in election petitions concerning members of County Assembly, and that the omission of a further appeal under section 75(4) of the Elections Act was a deliberate legislative choice, consistent with the constitutional aspiration for timely settlement of electoral disputes under Article 87(1). The Court struck out the appeal for want of jurisdiction, ordered the appellant to pay costs to the 1st, 2nd and 3rd respondents, and made no order of costs against or for the 4th respondent, which took no part in the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction to hear a second appeal from the High Court in an election petition for a member of a County Assembly originating from the magistrate's court

Key legal issues

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01

Jurisdiction to hear a second appeal in a County Assembly election petition

Holding

The Court lacks jurisdiction; the omission of a further appeal under section 75(4) of the Elections Act is deliberate and section 85A provides no second right of appeal

Reasoning

The Court reviewed its own precedents, including the Oerri Abiri decision and the five judge Bench decision in Mohammed Ali Sheikh, which held that the legislature deliberately omitted a second or further appeal from decisions of the High Court under section 75(4) of the Elections Act. The Court declined invitations to depart from its firmly held position, noting that timely settlement of electoral disputes under Article 87(1) of the Constitution would be negated by recognizing such an appeal. Any change must come from the legislature amending the Elections Act.

p. 2
02

Fate of the substantive appeal

Holding

The appeal was struck out for want of jurisdiction and costs were awarded against the appellant

Reasoning

Having determined that it has no jurisdiction to hear second appeals on elections of members of County Assembly, the Court held it could not address the substantive appeal. It struck out the appeal, awarded costs to the respondents who participated, and declined costs to the Clerk of the Nyamira County Assembly, which had taken no active part in the appeal and remained non-partisan.

p. 3

Legal principles established

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  • The Court of Appeal has no jurisdiction to hear second appeals from decisions of the High Court in election petitions concerning members of County Assembly, since section 85A of the Elections Act confers no such right of appeal

Court orders

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  1. 1.The appeal was struck out for want of jurisdiction
  2. 2.The appellant to pay costs of the appeal to the 3rd respondent and to the 1st and 2nd respondents jointly
  3. 3.No costs awarded to the 4th respondent as it took no active part in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nyamira
Election Petition Appeal No. 1 of 2018
Jurisdiction invoked
Article 164(3) of the Constitution and section 85A of the Elections Act considered; the Court held it lacked jurisdiction to hear a second appeal under section 75(4) of the Elections Act

Relief refused

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The appellant's appeal against the High Court judgment upholding her de-gazettement

The Court of Appeal has no jurisdiction to hear a second appeal from the High Court on an election petition for a member of County Assembly originating in the magistrate's court

p. 3

Costs

The appellant shall pay the costs of the appeal to the 3rd respondent and to the 1st and 2nd respondents jointly; no costs awarded to the 4th respondent as it did not take an active part in the appeal.

Quotable passages

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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 therefore strike out the appeal for want of jurisdiction. The appellant shall pay the costs of the appeal to the 3 rd respondent and to the 1st and 2nd respondents jointly.
p. 3Final orders - striking out for want of jurisdiction and costs
Our position remains firm, that this Court has no jurisdiction.
p. 3Firmness of the Court's jurisdictional position
We reiterate that section 85A does not provide a second right of appeal to this Court in regard to elections of members of County Assembly. It follows that this Court has no jurisdiction to hear the appellant’s appeal. The Court must therefore down its tools and cannot address the substantive appeal.
p. 3Binding rule on absence of second appeal in MCA election petitions

Issues in the judgment

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minor

Paragraph numbering is duplicated; two separate passages are both numbered [5]

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, "Damaris Nyarangi Mouni v Wafula Chebukati, Chairman IEBC & 3 others [2019] KECA 968 (KLR)", Case Analysis (2019). Election Petition Appeal No. 40 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/968/eng@2019-02-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.