Waibara v Kibeh & another (Civil Appeal E 468 of 2020) [2021] KECA 231 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that appeals from constitutional petitions get 60 days to file records, not the shorter election-petition deadlines.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal arises from an election petition or a constitutional petition
The appeal arises from a constitutional petition, not an election petition; the Court of Appeal had in its judgment of 19th June 2020 remitted the petition to the Constitutional and Human Rights Division to be heard as a constitutional petition, and that finding was binding and not disturbed.
The Court relied on its own prior judgment of 19th June 2020 which determined that the petition concerned Article 105(1)(b) of the Constitution read with section 76(1)(c) of the Elections Act, and that the petition was remitted to the Constitutional and Human Rights Division, not an Election Court. The applicant provided no material showing the decision under appeal was rendered by an Election Court. The character of the proceedings below therefore dictated which timelines apply.
Whether the record of appeal was filed out of time and should be struck out
The record of appeal was filed within time under rule 82 of the Court of Appeal Rules, which allows 60 days; the 47-day filing period was proper, so the application to strike out failed.
Since the appeal arose from a constitutional petition, the 30-day election-petition timeline under section 85A of the Elections Act and rule 9(2) of the Court of Appeal Election Petition Rules did not apply. The record of appeal was filed 47 days after the High Court judgment, within the 60-day period under rule 82. The applicant did not demonstrate that an Election Court rendered the decision appealed against.
Legal principles established
#- For a decision to be treated as arising from an election petition, the petition must have been filed within 28 days of the declaration of results under Article 87(2) of the Constitution and determined by an Election Court established under the Elections (Parliamentary and County) Petition Rules, 2017.
- The strict election-petition timelines in section 85A of the Elections Act apply only to appeals arising from election petitions challenging electoral outcomes heard by an Election Court; appeals arising from constitutional petitions are governed by rule 82 of the Court of Appeal Rules (60 days).
Court orders
#- 1.The Notice of Motion dated 6th April 2021 was dismissed
- 2.Costs were awarded to the respondents
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (interlocutory application to strike out a record of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waibara v Kibeh & another (Civil Appeal E 468 of 2020) [2021] KECA 231 (KLR)", Case Analysis (2021). Civil Application (Notice of Motion dated 6th April 2021) arising from Civil Appeal record filed 24th November 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/231/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.