Orange Democratic Movement Party & another v Opiyo & 2 others
The bottom line
#Kenya's Court of Appeal struck out ODM's late-appeal application because only a single judge—not a three-judge bench—can hear time-extension requests.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the full Court over a rule 4 enlargement-of-time application
The full Court lacked jurisdiction; rule 55 reserves such applications to a single judge, and the proviso permitting Court determination applies only upon adjournment and certification by a single judge.
Rule 55(1) assigns applications to a single judge; the proviso allows transfer to the full Court only on the single judge's adjournment, presupposing certification where public interest or other reasons warrant. The applicants never sought such certification from a single judge, so the three-judge bench could not entertain the application.
Whether Article 159(2) could cure the jurisdictional defect
No; the procedural route to certification was available and Article 159(2) does not provide an easy bypass of jurisdictional rules.
The applicants could have alerted the Registrar to list the matter before a single judge for certification. Having failed to use that available avenue, they could not lean on the overworked provision of Article 159(2) of the Constitution for an easy way out.
Whether extension of time would have been granted on the merits
Even assuming jurisdiction, the court would have refused the extension: the delay of over sixty days was inordinate and the explanation, premised on a presumed compliance with the High Court judgment, was unacceptable.
Applying the Fakir Mohamed factors, the applicants' explanation conflated the judgment of 27th May 2022 with the contempt ruling of 13th July 2022. What actually aggrieved them was the contempt ruling; the attempt to construct a nexus between the two decisions to explain the delay was unacceptable, and hearing the matter before the 9th August election was practically impossible.
Legal principles established
#- An application for enlargement of time to file a notice of appeal out of time is a single-judge matter under rule 55 of the Court of Appeal Rules, 2022, and a full Court has no jurisdiction to hear it unless a single judge has adjourned and certified it fit for determination by the Court.
- A party who wishes a single-judge application to be heard by the full Court must first move a single judge for certification or an order of adjournment; Article 159(2) cannot be invoked to bypass that route.
- Where a court lacks legal authority to entertain a matter, it must decline jurisdiction and down its tools.
Court orders
#- 1.The application dated 15th July 2022 struck out with costs on account of want of jurisdiction
- On appeal from
- High Court of Kenya at Kisumu
- HCCA No. E034 of 2022
- Jurisdiction invoked
- Rule 4 and rule 55 of the Court of Appeal Rules, 2022; Article 159(2) of the Constitution raised by the applicants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orange Democratic Movement Party & another v Opiyo & 2 others", Case Analysis (2022). Election Petition Appeal (Application) E186 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/893/eng@2022-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.