Waibara v Kibeh & another (Civil Appeal 431 of 2019) [2020] KECA 572 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a constitutional petition questioning an MP's qualification could proceed because the issue had never actually been decided before.
What this practically means
#Executive summary
#Key legal issues
#Whether res judicata barred the constitutional petition
No - the qualification issue was raised but never conclusively determined on merits in the prior election petition, as it was dismissed for want of jurisdiction; res judicata therefore did not apply.
The Court examined Election Petition No. 1 of 2017 and Election Petition Appeal No. 28 of 2018 and found that although the qualification issue was pleaded, the election court declined jurisdiction over it and the Court of Appeal only found error in that declination without deciding the merits. To constitute res judicata there must be adjudication conclusively determining the rights of the parties; dismissal for want of jurisdiction does not achieve this. Constitutional petitions, moreover, warrant sparing invocation of the doctrine.
Whether the High Court mischaracterised the petition as an election petition challenging the validity of the election
Yes - the petition was properly brought under Article 105(1)(b) of the Constitution seeking a declaration that a parliamentary seat had become vacant, a distinct jurisdiction from election validity petitions.
The trial judge equated the petition with a validity challenge under section 76(1)(a) of the Elections Act, but the petition sought a declaration of vacancy under Article 105(1)(b) read with section 76(1)(c). That jurisdiction serves a democratic purpose, can be invoked at any time during Parliament's life, and the question whether the Gatundu North seat had become vacant had never been determined by a competent court. The trial court therefore erred in dismissing the petition on res judicata and time-bar grounds.
Whether the costs order against the appellant in public interest litigation should stand
No - the trial court misdirected itself by awarding costs without considering the public interest nature of the petition, and the order was set aside.
The petition was brought under Articles 22(2) and 258 of the Constitution alleging contravention of the Constitution. Precedent shows public interest litigation is generally exempted from costs to avoid deterring rights-based suits. The trial judge's reason for awarding costs rested solely on its res judicata finding, which this Court overturned, amounting to a misdirection warranting appellate interference, with each party bearing their own costs.
Legal principles established
#- For res judicata to apply, the subject matter must have been conclusively decided on merits by a competent court with jurisdiction; dismissal for want of jurisdiction does not determine an issue on merits.
- The High Court has original jurisdiction under Article 105(1)(b) of the Constitution read with section 76(1)(c) of the Elections Act to determine whether a parliamentary seat has become vacant, at any time during the life of Parliament.
- In genuine public interest litigation, courts are slow to award costs against an unsuccessful petitioner.
Court orders
#- 1.The appeal is allowed
- 2.The orders dismissing the Petition made on 14th August 2019 are vacated and set aside
- 3.The Petition is remitted back to the Constitutional and Human Rights Division of the High Court for a new trial on a priority basis and within 6 months from the date of the judgment
- 4.Each party to bear their own costs of the appeal and of the Petition in the High Court
- On appeal from
- High Court of Kenya at Nairobi
- Const. Pet. No. 8B of 2019
- Jurisdiction invoked
- Article 164(3)(a) of the Constitution (appeal from the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Brava Food Industries Limited; Bood & 2 others (Contemnor) (Cause E899 of 2022) [2025] KEELRC 2275 (KLR)[2025] KEELRC 2275 (KLR)31 Jul 2025
- Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Brava Food Industries Limited (Cause E899 of 2022) [2024] KEELRC 2581 (KLR)[2024] KEELRC 2581 (KLR)24 Oct 2024
- Brava Food Industries Limited v Bakery, Confectionary, Food Manufacturing and Allied Workers’ Union [Kenya] (Miscellaneous Application E060 of 2022) [2023] KEELRC 46 (KLR)[2023] KEELRC 46 (KLR)20 Jan 2023
- Waibara v Kibeh & another (Civil Appeal E 468 of 2020) [2021] KECA 231 (KLR)[2021] KECA 231 (KLR)5 Nov 2021applied
Cite this brief
#Cite this brief
Caselaw, "Waibara v Kibeh & another (Civil Appeal 431 of 2019) [2020] KECA 572 (KLR)", Case Analysis (2020). Civil Appeal No. 431 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/572/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.