Adam v Jiir & 3 others (Election Petition Appeal E008 of 2023) [2023] KECA 884 (KLR)
The bottom line
#The Court of Appeal struck out a Wajir governor's election appeal because the notice of appeal failed to follow mandatory rules, ending the challenge entirely.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal filed in the High Court registry instead of the Court of Appeal registry, and not compliant with rule 6(3), can found jurisdiction
No. The notice filed at the High Court at Garissa was in the wrong registry, not in the prescribed format, and sought to appeal the whole judgment on both fact and law contrary to section 85A of the Elections Act; it was a nullity incapable of invoking the Court's jurisdiction.
Rule 6(1) requires election petition appeals to be initiated by notice of appeal, and rule 6(3) prescribes detailed mandatory contents. The Supreme Court in Salat and Anuar Loitiptip confirmed that a proper and timely notice of appeal is an absolute jurisdictional requirement. Election petitions are sui generis statutory proceedings in which the court is confined to the rules the statute makes; general civil procedure rules and Article 159(2)(d) cannot be invoked to fill gaps where a specific rule exists.
Whether the second notice of appeal filed in the Court of Appeal registry on March 10, 2023, though outside the record of appeal, could be brought in via a supplementary record
No. The second notice was substantially similar to the first and equally wanting in form and content, so no valid notice existed and a supplementary record could not remedy the defect.
The Court acknowledged the notice existed before it but held that substance matters: the second notice was 'completely wanting in form and content'. Allowing an amended notice via supplementary record would give one party undue advantage to fill gaps pointed out by the adversary, upsetting the balance the Supreme Court in Musa Cherutich Sirma required courts to strike between flexibility under Article 159(2)(d) and electoral timelines.
Whether Article 159(2)(d) of the Constitution overrides the notice of appeal requirements in election petition appeals
No. Following Apungu Arthur Kiberia, the defect was jurisdictional, not a curable procedural technicality, and the Supreme Court had directed strict compliance with the Rules in the post-2017/2018 election cycle.
The Court accepted that Article 159(2)(d) cures procedural technicalities but held this case raised a jurisdictional nullity. In Apungu the Supreme Court declined to find jurisdiction where a statute denied it and directed that the Rules, then in the public domain, be strictly observed in the next election cycle. Indulgence was therefore no longer justified, echoing Kiage, JA's dissent in Salat against using Article 159 to overthrow rules of procedure.
Whether a preliminary objection on jurisdiction can be raised orally and late in the proceedings
Yes. Jurisdiction is a pure point of law going to the root of the matter, which must be settled first and may be raised at any stage; the time-bar in the revised striking-out rule does not apply to jurisdiction.
Legal principles established
#- A valid notice of appeal complying with rule 6(3) of the Court of Appeal (Election Petition) Rules, 2017 is a jurisdictional prerequisite; without it no appeal exists before the Court of Appeal in an election petition matter
- Article 159(2)(d) of the Constitution and rule 5 of the Election Petition Rules cannot cure a notice of appeal that is a nullity, particularly after the Supreme Court's directive in Apungu that parties comply strictly with the Rules
- A notice of appeal that appeals the whole judgment, including findings of fact, offends section 85A of the Elections Act which limits election appeals to matters of law only
- A preliminary objection on jurisdiction, being a pure point of law, may be raised at any stage of the proceedings and is not barred by time limits for striking-out applications
Court orders
#- 1.The respondents' preliminary objection on jurisdiction is upheld
- 2.The record of appeal is struck out for offending rules 6 and 8 of the Court of Appeal (Election Petition) Rules, 2017
- 3.The appeal is struck out
- 4.Costs of the appeal awarded to the respondents
- On appeal from
- High Court of Kenya at Garissa
- E012 of 2022
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals from the High Court in election petitions concerning the office of county governor lie to the Court of Appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Issa Elanyi Chemao & 2 others v Hon. Esther Murugi Mathenge & 3 others[2026] KECA 263 (KLR)13 Feb 2026distinguished
Cite this brief
#Cite this brief
Caselaw, "Adam v Jiir & 3 others (Election Petition Appeal E008 of 2023) [2023] KECA 884 (KLR)", Case Analysis (2023). Court of Appeal Election Petition Appeal (not expressly numbered in the judgment; arising from Wajir High Court Election Petition E012 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/884/eng@2023-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.