Claire Moraa Obino v Independent Electoral & Boundaries Commission & 2 others
The bottom line
#Kenya's Court of Appeal confirmed it has no power to hear second appeals over County Assembly election petitions, striking out the appeal and awarding costs against the appellant.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal is clothed with jurisdiction to hear a second appeal from the High Court in an election petition concerning nomination of a member of a County Assembly
The Court of Appeal lacks jurisdiction; appeals regarding election or nomination of members of a County Assembly terminate at the High Court under sections 75(4) and 85A of the Elections Act read with Article 164(3) of the Constitution.
The court adopted the Supreme Court's decision in Hamdia Yaroi Shek Nuri, which held that the limitation on the jurisdictional reach of Article 164(3)(a) is borne out of Article 87 of the Constitution, which charges Parliament with establishing mechanisms for timely settlement of electoral disputes, including the level of appeals. The Constitution cannot subvert itself. The appellant's attempt to show the jurisdictional door was left 'slightly ajar' via the Political Parties Act route failed because the dispute was in substance an electoral dispute, not a PPDT appeal.
Whether the dispute could be characterised as an appeal from the Political Parties Dispute Tribunal under section 41 of the Political Parties Act
No; the dispute was adjudicated at the gazetted election court and appealed to the High Court, and could not be reframed as a PPDT appeal.
The court found that the transcendental controversy was whether the appellant was validly elected as a nominated member of the Kisii County Assembly. Once a person has been nominated and gazetted, nomination can only be challenged through a duly gazetted election court. The claim that the matter was a PPDT appeal was, in the court's words, a profound inexactitude. Cases cited by the appellant concerned first appeals under the Elections Act in which the court had express jurisdiction.
Legal principles established
#- The Court of Appeal has no jurisdiction to hear and determine second appeals from the High Court arising from an election petition concerning the validity of the election or nomination of a member of a County Assembly, in the absence of an express statutory provision
- A dispute over a nomination that has resulted in gazettement as a nominated member of a County Assembly is an electoral dispute cognisable only by a gazetted election court, and cannot be characterised as an appeal from the Political Parties Dispute Tribunal under section 41 of the Political Parties Act
Court orders
#- 1.The appeal is struck out for want of jurisdiction
- 2.The appellant shall pay the costs of the appeal to the 1st and 3rd respondents
- 3.No costs are awarded to the 2nd respondent, which did not take an active part in the appeal
- On appeal from
- High Court of Kenya, Kisii
- Election Petition No E002 of 2023
- Jurisdiction invoked
- Rule 6 of the Court of Appeal (Election Petitions) Rules, 2017; the court determined it lacked jurisdiction under Article 164(3) of the Constitution read with sections 75(4) and 85A of the Elections Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Claire Moraa Obino v Independent Electoral & Boundaries Commission & 2 others", Case Analysis (2023). Election Petition Appeal from Kisii High Court Election Petition No E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1263/eng@2023-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.