Arale v Independent Electoral and Boundaries Commission & 4 others (Election Petition Appeal E013 of 2023) [2023] KECA 1045 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an election appeal for missing deadlines and filing in the wrong registry — strict rules will not be excused.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal, memorandum and record of appeal were filed within the required timeframe
- 2.Whether the notice of appeal, memorandum and record of appeal were served within the required timeframe
- 3.Whether the notice of appeal is incompetent and/or defective
- 4.Whether the appeal is merited
Key legal issues
#Whether a notice of appeal was filed in the Court of Appeal registry within 7 days so as to invoke the jurisdiction of the court
No notice of appeal was filed in the Court of Appeal registry within the prescribed time; the document filed in the High Court does not confer jurisdiction, and the e-filing system was shown to be operational on 7 March 2023
The Rules contemplate filing of a notice of appeal in the Court of Appeal registry within 7 days. The appellant's claim of an e-filing downtime was contradicted by evidence that another law firm successfully filed and paid for a notice of appeal in the same system on 7 March 2023, generating a case number. A notice filed in the High Court cannot trigger the Court of Appeal's jurisdiction, the court relying on Musa Cherutich Sirma and Patricia Cherotich Sawe.
Whether the record of appeal was filed within the 30-day statutory period
The record of appeal was filed on 6 April 2023, one day out of time, because lodgement is complete only when all steps including payment and generation of a case number are done
Reading rule 8(5) of the Election Petition Rules with section 85A(1)(a) of the Elections Act, the 30 days expired on 5 April 2023. The judiciary tracking number showed filing effected at 1.04 hours on 6 April 2023. Payment of fees and allocation of a case number are integral to lodgement, so the appeal was filed out of time by one day. Alleged hacking of counsel's email occurred only after the timelines had lapsed and could not excuse the delay.
Whether the record of appeal was served within time
Service on 12 April 2023 was within the 5-day limit once Good Friday and Easter Monday were excluded as public holidays under rule 3 of the Court of Appeal Rules, 2022
The Election Petition Rules contain no computation-of-time provision, so rule 4 permits recourse to the Court of Appeal Rules. Applying rule 3 of the 2022 Rules, the two public holidays between filing and service were excluded days, and service on 12 April 2023 was therefore within the 5-day period under rule 8(6).
Whether the notice of appeal and memorandum of appeal were incompetent and defective in form
The notice of appeal was not in the prescribed Form EPA 1 format and did not contain the grounds of appeal; a memorandum of appeal is unknown to the Election Petition Rules and the appeal is incompetent
Rule 6(3)(c) requires the notice of appeal to precisely set out the grounds of appeal, and rule 6(5) prescribes Form EPA 1. Section 85A(1) confines appeals to matters of law only. The mandatory nature of these provisions leaves no room for condonation, and the Abdullahi decision confirms there is no wriggle room for enlargement of time. The appeal therefore had to be struck out.
Legal principles established
#- A notice of appeal in an election petition appeal must be filed in the Court of Appeal registry, not the High Court registry, and it is a jurisdictional prerequisite that cannot be waived
- Lodgement of an appeal document is complete only when all mandatory and integral steps - including payment of court fees and generation of a case number - have been completed
- The grounds of appeal in an election petition appeal must be contained in the notice of appeal in the prescribed Form EPA 1; a memorandum of appeal is not a permissible component of the record of appeal
- Article 159(2)(d) of the Constitution cannot be invoked to excuse non-compliance with the strict timelines and mandatory requirements of the Court of Appeal (Election Petition) Rules, 2017
Court orders
#- 1.The notice of motion by the 1st to 4th respondents dated April 13, 2023 be and is hereby allowed
- 2.The notice of motion by the 5th respondent dated April 17, 2023 be and is hereby allowed
- 3.The notice of appeal dated March 7, 2023 be and is hereby struck out
- 4.The record of appeal dated April 3, 2023 be and is hereby struck out
- 5.The costs of the applications and the struck out appeal shall be borne by the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Garissa
- Election Petition No E004 of 2022
- Jurisdiction invoked
- Section 85A(1) of the Elections Act - appeal from High Court in an election petition to the Court of Appeal on matters of law only, filed within thirty days; jurisdiction triggered only by a properly filed notice of appeal under rule 6 of the Court of Appeal (Election Petition) Rules, 2017
Relief refused
#The appellant's prayer that the appeal be heard and determined on its merits notwithstanding procedural shortcomings, invoking article 159(2)(d) of the Constitution
Election petition appeals are sui generis with strict statutory timelines; article 159(2)(d) cannot cure failure to file a valid notice of appeal, which is a jurisdictional prerequisite
Costs
The costs of the applications and the struck out appeal shall be borne by the appellant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
What is paramount and worth noting is that no appeal to this court can be initiated without the filing of a notice of appeal in this court's registry. Indeed, it is a notice of appeal, properly filed, that triggers the jurisdiction of this court.
The process of lodgement can only be deemed as completed and successful upon all the mandatory and integral steps having been undertaken by all parties involved. In short, all the required steps operate conjunctively and not disjunctively.
The provisions of section 85A(1)(a) of the Elections Act, 2011 are cast in stone and there is no wriggle room for the consideration of the question of enlargement of time.
The oxygen principle under article 159(2)(d) of the Constitution cannot, unfortunately come to his aid.
Accordingly, we allow the applications as follows; a. The notice of motion by the 1st to 4th respondents dated April 13, 2023 be and is hereby allowed. b. The notice of motion by the 5th respondent dated April 17, 2023, be and is hereby allowed. c. The notice of appeal dated March 7, 2023 be and is hereby struck out. d. The record of appeal dated April 3, 2023 be and is hereby struck out. e. The costs of the applications and the struck out appeal shall be borne by the appellant.
Issues in the judgment
#The judgment alternately records the High Court judgment date as 6 March 2023 and 6 March 2023/march 6, 2023 in places, but elsewhere the record of appeal timeline is computed from 6 March 2023 while paragraph 12 states judgment was 'rendered on March 6, 2023' and paragraph 8 implies judgment after a 30 January 2023 ruling; the appeal record itself is dated April 3, 2023 and described as both 'filed on April 6, 2023' and 'filed on April 5, 2023' - internally consistent in the final finding but the coram lacks title detail of the 5th respondent's designation
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.
- Mazeras Kenya (EPZ) Limited v Kenya Revenue Authority (Civil Appeal (Application) E134 of 2024) [2025] KECA 2067 (KLR)[2025] KECA 2067 (KLR)5 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Arale v Independent Electoral and Boundaries Commission & 4 others (Election Petition Appeal E013 of 2023) [2023] KECA 1045 (KLR)", Case Analysis (2023). Election Petition Appeal (Eldas Constituency), memorandum of appeal dated 3 April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1045/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.