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Court of AppealStruck OutElection Petition Appeal from Kisii High Court Election Petition No E002 of 2023· [2023] KECA 1263 (KLR)

Claire Moraa Obino v Independent Electoral & Boundaries Commission & 2 others

Court of Appeal of Kenya
24 October 2023
3,561 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant, Clare Moraa Obino, had been gazetted as a Jubilee Party nominee to the Kisii County Assembly gender top-up list. Redempta Vera Onkundi petitioned the Chief Magistrate's Court, which invalidated the gazettement on the ground that the appellant was not a member of the party. The High Court (J. Kamau, J) dismissed the appellant's first appeal in its entirety on 30th June 2023. The appellant then lodged a further appeal to the Court of Appeal at Kisumu. Before the merits could be reached, the 1st and 3rd respondents raised a jurisdictional objection: under Article 164(3) of the Constitution and sections 75(4) and 85A of the Elections Act, appeals concerning the election or nomination of a member of a County Assembly terminate at the High Court, so no second appeal lies to the Court of Appeal. The appellant argued the jurisdictional door had been left "slightly ajar", contending that the dispute was in substance an appeal from the Political Parties Dispute Tribunal under section 41 of the Political Parties Act, and relied on first-appeal electoral authorities. The court, citing the Supreme Court's decision in Hamdia Yaroi Shek Nuri and its own ruling in the companion case Dolphine Nyangara Onkoba delivered the same day, rejected both arguments. It held that the dispute was an electoral dispute cognisable only by a gazetted election court, and that the absence of an express statutory provision for second appeals is a constitutionally valid limitation borne out of Article 87. The appeal was struck out for want of jurisdiction, with costs to the 1st and 3rd respondents and no costs to the inactive 2nd respondent. The High Court judgment was not disturbed on the merits.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 3
02

Whether the dispute could be characterised as an appeal from the Political Parties Dispute Tribunal under section 41 of the Political Parties Act

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is struck out for want of jurisdiction
  2. 2.The appellant shall pay the costs of the appeal to the 1st and 3rd respondents
  3. 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

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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, "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.