Mogesi Agnes Bange & 8 others v Independent Electoral and Boundaries Commission & 13 others
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear second appeals in County Assembly election disputes, striking out the appeal and awarding costs against the aspirants.
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 Court of Appeal has jurisdiction to hear a second appeal from the High Court in an election dispute concerning nomination of members of a County Assembly
- 2.Whether the appeal should be struck out for want of jurisdiction
Key legal issues
#Whether the Court of Appeal has jurisdiction over a second appeal in a County Assembly member election dispute
It has no jurisdiction; section 85A of the Elections Act provides no second right of appeal for such disputes, following the five-judge bench decision in Mohammed Ali Sheikh.
The Court noted it had consistently held, both as three-judge and five-judge benches, that it lacks jurisdiction to hear second appeals concerning election of members of County Assembly. The recent unanimous five-judge decision in Mohammed Ali Sheikh had revisited and settled the question, rejecting claims of per incuriam decisions. A right of appeal is a creature of statute; legislative silence means no right exists. The Court therefore declined to reinvent the wheel and struck out the appeal.
Whether the general appellate power under Article 164(3)(a) of the Constitution can sustain a second appeal
No; the general appellate power cannot be invoked to allow a second appeal where the statute has not provided for one.
The respondents argued, and the Court accepted by following precedent, that Parliament did not intend to provide a second appeal from determinations of electoral disputes by the Resident Magistrate's Court on election of a member of County Assembly. The omission by the legislature to provide a right of appeal means the right does not exist, and the Court cannot expand its jurisdiction through judicial craft or innovation.
Legal principles established
#- Section 85A of the Elections Act does not provide a right of second appeal to the Court of Appeal in election disputes concerning members of a County Assembly, so the Court has no jurisdiction to entertain such second appeals.
- Once jurisdiction is found to be lacking, the court must not proceed further with the matter.
Court orders
#- 1.The application by the 3rd to 12th respondents is allowed
- 2.The appeal is struck out for want of jurisdiction
- 3.Costs awarded to the respondents against the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Migori
- HC. Election Petition Appeal No. 2 of 2018 (as consolidated with Election Petition Appeal No. 1 of 2018 and No. 4 of 2018)
- Jurisdiction invoked
- Jurisdiction challenged under Article 164(3)(a) of the Constitution and section 85A of the Elections Act; motion under Rules 42 & 84 of the Court of Appeal Rules, 2010, Rule 4(1)&(2) of the Court of Appeal (Election Petition) Rules 2017 and Article 159(2)(d) of the Constitution
Relief refused
#Hearing of the substantive second appeal against the High Court judgment
The Court lacks jurisdiction to hear second appeals regarding elections of members of County Assembly
Costs
Costs awarded to the respondents against the appellants
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 therefore allow the application by the 3 rd to 12th respondents and consequently strike out the appeal for want of jurisdiction. We award costs to the respondents against the appellants.
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.
It is now well settled that the issue of jurisdiction, is an issue that is pertinent and once raised, must be settled at the earliest opportunity, and where it is found that there is no jurisdiction, the court or tribunal should not proceed any further with the matter.
Conceptually, the right of appeal being a statutory right, failure to provide the right implies the right does not exist.
Issues in the judgment
#Date of the notice of motion given as 18th July, 2010, inconsistent with the 2018 appeal timeline.
Citation of Lilian S given as [1989] KLR 1 in one place and [1989] KLR 14 in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mogesi Agnes Bange & 8 others v Independent Electoral and Boundaries Commission & 13 others", Case Analysis (2019). Election Petition Appeal No. 35 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1062/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.