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Court of AppealStruck OutElection Petition Appeal (Application) E186 of 2022· [2022] KECA 893 (KLR)

Orange Democratic Movement Party & another v Opiyo & 2 others

Court of Appeal
12 August 2022
2,209 words in judgment
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The bottom line

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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

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Executive summary

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This is the Court of Appeal's reasoned decision, delivered under rule 34(7) of the Court of Appeal Rules, 2022, for its extempore ruling of 3rd August 2022 dismissing a Notice of Motion dated 15th July 2022 by the Orange Democratic Movement Party and its National Elections Board. The motion had sought stay of execution of the High Court judgment of Kamau, J of 27th May 2022 (upholding a PPDT decision on the South Kasipul Ward primaries) and the contempt ruling of 13th July 2022, plus leave to file a notice of appeal out of time. At the hearing the applicants abandoned the stay prayer, leaving a rule 4 application for enlargement of time. The Court raised, of its own motion, a jurisdictional objection: under rule 55, an application to extend time to file a notice of appeal is a single-judge matter, and the proviso allows full-Court determination only upon a single judge's adjournment and certification. The applicants had not sought such certification and could not invoke Article 159(2) to bypass the route. The Court held it lacked jurisdiction and must down its tools, and added that, even assuming jurisdiction, it would have refused the extension: the delay of over sixty days was inordinate, the explanation conflated the judgment of 27th May with the later contempt ruling, and the timeline before the 9th August 2022 election was impossible. The application was struck out with costs on account of want of jurisdiction. The decision binds subordinate courts and single judges on the allocation of rule 4 applications.

Key legal issues

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01

Jurisdiction of the full Court over a rule 4 enlargement-of-time application

Holding

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.

Reasoning

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.

p. 2
02

Whether Article 159(2) could cure the jurisdictional defect

Holding

No; the procedural route to certification was available and Article 159(2) does not provide an easy bypass of jurisdictional rules.

Reasoning

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.

p. 3
03

Whether extension of time would have been granted on the merits

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 15th July 2022 struck out with costs on account of want of jurisdiction

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Court of Appeal Rules, 2022Rule 4
  • Court of Appeal Rules, 2022Rule 34(7)
  • Court of Appeal Rules, 2022Rule 55
  • Orange Democratic Movement Party Primaries Election RulesRule 8

Cases cited (2)

  • Fakir Mohamed –vs- Joseph Mugambi & 2 Others
    [2005] eKLR

    Restating the considerations guiding the discretionary power to enlarge time under rule 4.

  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral & Boundaries Commission & 7 others
    [2014] eKLR

    The need for parties to electoral disputes to comply with constitutional and statutory timelines.

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.