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Court of AppealDismissedCivil Application E390 of 2021· [2022] KECA 406 (KLR)

Waibara v Kibeh & another

Court of Appeal
4 March 2022
2,738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Okwengu, M'Inoti and Laibuta, JJA) dismissing a notice of motion by Clement Kung'u Waibara seeking a declaration that the Court lacked jurisdiction to entertain Civil Appeal No. E468 of 2020 due to lapse of time, and seeking to set aside the Court's ruling of 28 October 2020 granting a stay of execution of the High Court judgment in Constitutional Petition No. 210 of 2020 (Korir, J), which declared Annie Wanjiku Kibeh's election as MP for Gatundu North in violation of Article 99(2)(a) & (d) and her seat vacant under Article 103(1)(g). Waibara argued that, under Article 105(3) read with section 76(1)(c) and section 85A of the Elections Act, the appeal had to be filed and determined within six months. The respondents countered that the motion was res judicata and an abuse of process, and that the record of appeal filed 47 days after judgment was within the 60 days allowed by Rule 82(1) of the Court of Appeal Rules. The Court held that the underlying petition was a constitutional petition seeking declaration of vacancy under Article 105(1)(b) read with section 76(1)(c), not an election petition; the six-month and 30-day election timelines in section 85A and the Election (Petition) Rules, 2017 did not apply, and only the Court of Appeal Rules timelines governed. The motion was dismissed with costs.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 5
02

Whether the record of appeal was filed out of time

Holding

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.

Reasoning

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

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  • 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

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  1. 1.The applicant's notice of motion dated 10th November 2021 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 99(2)(a) & (d)
  • Constitution of Kenya, 2010Article 103(1)(g)
  • Constitution of Kenya, 2010Article 105(1), (2), (3)
  • Constitution of Kenya, 2010Article 159
  • Elections Actsection 76(1)(a), (b), (c)
  • Elections Actsection 85A
  • Court of Appeal Rules, 2010Rule 5
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 47
  • Court of Appeal Rules, 2010Rule 75(2)
  • Court of Appeal Rules, 2010Rule 82(1)
  • Court of Appeal Election (Petition) Rules, 2017Rule 8(5)

Cases cited (6)

  • Lemanken Aramat vs Harun Meitamei Lempaka & 2 others
    [2014] eKLR

    Centrality of timelines when dealing with election petitions

  • John Munuve Mati vs Returning Officer Mwingi North Constituency, IEBC & Paul Musymi Nzegu
    [2018] eKLR

    Application of strict timelines provided in the Elections Act

  • Nicholas Kiptoo Arap Korir Salat vs IEBC & Others
    [2013] eKLR

    Application of strict timelines provided in the Elections Act

  • Maitha vs Said & Anor
    Civil Appeal No. 292 of 1998 [2008] 2 KLR (EP 33)

    Application of strict timelines provided in the Elections Act

  • John Florence Maritime Services Ltd. & Anor. vs Cabinet Secretary for Transport & Infrastructure & 3 Others
    [2015] eKLR

    Elements that must all be satisfied for the threshold of res judicata to be met

  • Independent Electoral & Boundaries Commission vs Maina Kiai & others
    [2017] eKLR

    Elements that must all be satisfied for the threshold of res judicata to be met

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.