Waibara v Kibeh & another
The bottom line
#Kenya's Court of Appeal confirmed that petitions to declare an MP's seat vacant follow normal appeal timelines, not strict election-petition deadlines.
What this practically means
#Executive summary
#Key legal issues
#Whether the six-month timeline in Article 105(2) of the Constitution as read with section 85A of the Elections Act applies to the appeal
The appeal does not fall within the election-petition timelines; the underlying petition was a constitutional petition under Article 105(1)(b) read with section 76(1)(c) of the Elections Act, so only the Court of Appeal Rules, 2010 timelines apply.
The Court traced the origin of the petition, which was remitted by the Court of Appeal in Civil Appeal No. 431 of 2019 for trial as a constitutional petition. Article 105(1) recognises two distinct questions: validity of election, and vacancy of a seat. A vacancy petition under section 76(1)(c) may be brought at any time and is distinct from an election petition handled by an election court. Consequently the 30-day and six-month election timelines in section 85A and the Election (Petition) Rules, 2017 do not apply; Rules 75(2) and 82(1) of the Court of Appeal Rules govern.
Whether the record of appeal was filed out of time
The record of appeal, filed 47 days after the High Court judgment, was within the 60-day period allowed by Rule 82(1) of the Court of Appeal Rules, 2010.
Since the appeal arises from a constitutional petition rather than an election petition, the applicable filing timeline is Rule 82(1) of the Court of Appeal Rules, which allows 60 days for filing the record of appeal. Filing within 47 days was therefore in time, and no jurisdictional lapse arose.
Legal principles established
#- A petition seeking a declaration that a parliamentary seat has become vacant under Article 105(1)(b) of the Constitution read with section 76(1)(c) of the Elections Act is a constitutional petition, not an election petition, and appeals from it are governed by the Court of Appeal Rules, 2010 timelines, not the election-petition timelines in section 85A of the Elections Act.
- A petition under section 76(1)(c) of the Elections Act to declare a seat vacant is not pegged to the declaration of results or the election and may be brought at any time during the life of Parliament.
Court orders
#- 1.The applicant's notice of motion dated 10th November 2021 is dismissed with costs
- On appeal from
- High Court
- Constitutional Petition No. 210 of 2020
- Jurisdiction invoked
- Rules 42 and 47 of the Court of Appeal Rules, 2010 (application to set aside the Court's ruling of 28 October 2020 in Civil Appeal No. E468 of 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Export Processing Zones Authority Kenya & 1 other v Fanuel Odede Kidenda & 2 others[2026] KECA 1328 (KLR)10 Jul 2026doubted
- Kibeh v Waibara & another[2022] KECA 388 (KLR)4 Mar 2022not followed
Cite this brief
#Cite this brief
Caselaw, "Waibara v Kibeh & another", Case Analysis (2022). Civil Application E390 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/406/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.