Bardad Mohamed Farah v The Independent Electoral and Boundaries Commission (iebc) & 2 others
The bottom line
#Kenya's Court of Appeal struck out an election appeal filed just seven days late, confirming 30-day election appeal deadlines allow no extensions.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court can exclude Sundays, public holidays or certified days of delay when computing the 30-day filing period under section 85A of the Elections Act
No. Election petition timelines are sui generis and computed strictly; the 2017 Rules do not provide for computation of time and the fallback is section 85A of the Elections Act itself, not section 57 of the Interpretation and General Provisions Act or the 2022 Court of Appeal Rules.
The Court accepted that the 2017 Rules are silent on computation of time but held that election petitions are sui generis. The constitutional imperative of expeditious determination of electoral disputes, embedded in article 87 and reflected in section 85A, permits no wriggle room. The Court declined to follow the pragmatic exclusionary approach in Waititu, deferring instead to the Supreme Court's strict reading in Lemanken Aramat and Kidero v Waititu, and its own decisions in Munuve Mati, Wavinya Ndeti and Jane Wambui Mwaura.
Whether the Court has discretion to extend time or admit an appeal filed out of time under section 85A
No. Section 85A confers both the right of appeal and jurisdiction, and is mandatory; filing outside the 30 days extinguishes the right to appeal and robs the Court of jurisdiction.
Relying on Wavinya Ndeti, the Court noted that section 85A deals with substantive law, conferring both a right of appeal and jurisdiction, and contains no power to extend time. An appeal filed out of time is incompetent and the Court cannot entertain it; the Supreme Court in Kidero v Waititu held that the Court of Appeal admitting an out-of-time election appeal acts without jurisdiction.
Whether the appellant's appeal was filed within time
No. The High Court delivered judgment on March 3, 2023 and the record of appeal was filed on April 10, 2023, seven days late even computing calendar days without exclusion.
The appellant conceded the dates but argued for exclusion of Sundays, public holidays and the period April 7–10, 2023. The Court rejected that computation, holding that strict calendar computation applies and that the luxury of certificates of delay available in general appeals is unavailable in election petition appeals.
Legal principles established
#- An appeal from the High Court in an election petition must be filed within 30 days of the decision of the High Court as required by section 85A of the Elections Act, and the Court has no discretion to extend that time.
- Where the Court of Appeal (Election Petition) Rules, 2017 make no provision on computation of time, the fallback is section 85A of the Elections Act itself, not section 57 of the Interpretation and General Provisions Act; election timelines are computed strictly without excluding Sundays and public holidays.
Court orders
#- 1.The preliminary objections raised by the 1st to 3rd respondents are sustained
- 2.The Memorandum of Appeal is struck out as incompetent, with costs to the respondents
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Section 85A of the Elections Act (appeal from High Court election petition to the Court of Appeal on matters of law only, to be filed within 30 days)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bardad Mohamed Farah v The Independent Electoral and Boundaries Commission (iebc) & 2 others", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1024/eng@2023-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.