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Court of AppealStruck OutElection Petition Appeal (not expressly numbered in judgment; appeal from Nyamira High Court consolidated Election Petition Appeals Nos. E001 of 2022, E001 of 2023 and E003 of 2023)· [2023] KECA 1262 (KLR)

Dolphine Nyangara Onkoba v Michelle Kemuma Omwoyo & 2 others

Court of Appeal of Kenya
24 October 2023
3,807 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed it cannot hear second appeals in County Assembly election petition cases, striking out an appellant's notice of appeal for lack of jurisdiction.

What this practically means

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Executive summary

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This appeal arose from a dispute over the Jubilee Party's gender top-up nomination to the Nyamira County Assembly following the 6th August 2022 General Elections. The party submitted conflicting nomination letters, and the IEBC gazetted the appellant as the nominee. The 1st respondent successfully petitioned the Chief Magistrate's election court, which nullified the gazette notice. The High Court (L. Njuguna, J.), hearing three consolidated appeals on 29th May 2023, dismissed them all and let the trial court's decision stand. Before the Court of Appeal, the 1st respondent filed a Notice of Motion dated 9th June 2023 seeking striking out of the Notice of Appeal and Record of Appeal on three grounds: want of jurisdiction over a second appeal, improper service of the Notice of Appeal, and failure to deposit security for costs under the Court of Appeal (Election Petition) Rules, 2017. Because the application was potentially dispositive, the Court determined the jurisdictional question first. Relying on the Supreme Court's unanimous, binding decision in Hamdia Yaroi Shek Nuri and its own consistent precedents, the Court held that sections 75(4) and 85A of the Elections Act deliberately provide no second appeal in County Assembly election petitions, and that this restriction gives effect to Article 87 of the Constitution. Article 164(3) confers general jurisdiction but does not automatically create a right of appeal, and the right of access to justice does not entail endless appeals. The Court declined the invitation to depart from precedent. It struck out the Notice of Appeal dated 5th June 2023 for want of jurisdiction, awarded costs to the 1st and 2nd respondents, and made no order for costs against the non-participating 3rd respondent.

Key legal issues

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01

Whether the Court of Appeal may entertain a second appeal in a Member of County Assembly election petition

Holding

No. Sections 75(4) and 85A of the Elections Act deliberately restrict appeals to the High Court, giving effect to Article 87 of the Constitution, and the Supreme Court's decision in Hamdia Yaroi Shek Nuri is binding

Reasoning

The Supreme Court in Hamdia Yaroi Shek Nuri, a case on all fours, held that Article 87 of the Constitution charges Parliament with establishing mechanisms for timely settlement of electoral disputes, and the tiering of appeals in sections 75(4) and 85A of the Elections Act is such a mechanism. To imply a second appeal from Article 164(3) would subvert Article 87. The Court of Appeal's prior decisions are consistent with this, and the precedent is unanimous, stable and binding under stare decisis.

p. 6
02

Whether the right of access to justice renders the statutory restriction on second electoral appeals unconstitutional

Holding

No. Access to justice under Articles 47, 48 and 50 does not entail a right to file endless appeals; the Constitution anticipates restrictions promoting timely and proportionate settlement of electoral disputes

Reasoning

The Court held that the appellant misunderstood the scope of the right to access justice. Finality and timeliness in electoral disputes are constitutionally valued, and the right of appeal does not imply unlimited tiers of appeal. Restrictions consistent with Article 87 are constitutionally justified and require no Article 24 proportionality analysis.

p. 7
03

Whether the Court should depart from its own precedents on this question

Holding

Declined. There is no constitutional right at stake, the precedents are unanimous and stable, and even absent stare decisis the doctrine of comity would counsel against departure

Reasoning

The Court found none of the conditions for overturning precedent established: no constitutional right was involved; the social justice of the case favoured stability; and all Supreme Court and Court of Appeal benches have interpreted the provisions unanimously, making the interpretation stable, predictable and authoritative over time.

p. 7

Legal principles established

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  • The Court of Appeal has no jurisdiction, absent an express statutory provision, to hear a second appeal from the High Court in an election petition concerning the validity of election of a Member of a County Assembly, following the Supreme Court's binding decision in Hamdia Yaroi Shek Nuri
  • Article 164(3) of the Constitution confers general jurisdiction on the Court of Appeal but does not automatically create a right of appeal in all circumstances; a right of appeal must be founded in statute

Court orders

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  1. 1.The Notice of Appeal dated 5th June 2023 is struck out for want of jurisdiction
  2. 2.The appellant shall pay the costs of the appeal to the 1st and 2nd respondents
  3. 3.No costs awarded to the 3rd respondent as it did not actively participate in the appeal
On appeal from
High Court of Kenya at Nyamira
Nyamira High Court Election Petition Appeal No. E001 of 2022, E001 of 2023 (appellant) and Petition Appeal No. E003 of 2023 (IEBC), consolidated
Jurisdiction invoked
The Court held it had no jurisdiction: no express statutory provision for a second appeal under sections 75(4) and 85A of the Elections Act notwithstanding Article 164(3) of the Constitution; the appeal was struck out on a Notice of Motion dated 9th June 2023 under the Court of Appeal (Election Petition) Rules, 2017

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, "Dolphine Nyangara Onkoba v Michelle Kemuma Omwoyo & 2 others", Case Analysis (2023). Election Petition Appeal (not expressly numbered in judgment; appeal from Nyamira High Court consolidated Election Petition Appeals Nos. E001 of 2022, E001 of 2023 and E003 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1262/eng@2023-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.