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Court of AppealStruck OutCourt of Appeal Appeal from Election Petition Appeal Nos. E006 & E007 of 2023 (High Court, Garissa)

Gedi v Gedi & 2 others (Election Petition Appeal E018 of 2023) [2023] KECA 1336 (KLR)

Court of Appeal of Kenya
10 November 2023
4,751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 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 MCA election disputes—county assembly election cases end at the High Court.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, P., ole Kantai and Achode, JJ.A.) determined a single threshold question: whether it has jurisdiction to hear a second appeal arising from the election of a Member of a County Assembly. The appeal originated from the Fafi Ward MCA election of 9 August 2022, in which the 1st respondent was declared duly elected with 802 votes against the appellant's 720. The Chief Magistrate's Court at Garissa nullified the election and ordered a certificate of election issued to the appellant. On appeal, the High Court (Mulwa, J.) allowed the 1st respondent's appeal and the IEBC's cross-appeal, invalidated the certificate issued to the appellant, and directed a fresh election. The appellant then filed a further appeal to the Court of Appeal, where all three respondents raised preliminary objections on jurisdiction, invoking sections 75(4) and 85A of the Elections Act. The Court held that electoral proceedings are sui generis and that the Elections Act confines Court of Appeal election appeals to disputes concerning the National Assembly, Senate or the office of county governor. Section 75(4) permits only one appeal, to the High Court on matters of law. The omission of MCA second appeals is deliberate legislative design securing finality and expedition. The Supreme Court's affirmance of this position in Hamdia Yaroi Shek Nuri binds the Court of Appeal under Article 163(7) of the Constitution, and the appellant failed to demonstrate that the prior decisions were made per incuriam. The Nyutu Agrovet residual-jurisdiction doctrine, being arbitration-specific, was held inapplicable to electoral disputes. The preliminary objections were upheld, the notice and record of appeal were struck out, and costs were awarded to the respondents capped at Kshs. 200,000 subject to taxation. The High Court's judgment was not disturbed on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction to hear and determine a second appeal arising from the election of a Member of a County Assembly

Key legal issues

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01

Whether the Court of Appeal has jurisdiction over a second appeal in an MCA election dispute

Holding

It does not. Section 75(4) of the Elections Act provides only one appeal, to the High Court on matters of law, and section 85A confines appeals to the Court of Appeal to disputes concerning the National Assembly, Senate or county governor. The omission of MCA second appeals is deliberate legislative design, affirmed by the Supreme Court in Hamdia Yaroi Shek Nuri, which binds this Court under Article 163(7).

Reasoning

Jurisdiction is conferred by the Constitution and statute, not by pleadings or ingenuity. Electoral disputes are sui generis, governed strictly by the Elections Act. Section 85A expressly limits Court of Appeal election appeals to National Assembly, Senate and gubernatorial contests. The absence of provision for MCA second appeals was held in Isaac Oerri Abiri to be deliberate, ensuring finality and expedition. The Supreme Court affirmed this position in Hamdia Yaroi Shek Nuri, binding the Court under Article 163(7). The appellant failed to show the prior decisions were per incuriam.

p. 9
02

Whether the Nyutu Agrovet residual jurisdiction doctrine applies to permit the appeal

Holding

No. Nyutu Agrovet concerned arbitration disputes and cannot be transplanted into electoral matters, which are strictly statutory.

Reasoning

The appellant invoked Nyutu Agrovet, where the Supreme Court allowed exceptional residual review where statute is silent. The Court held that electoral law is sui generis and its jurisdictional parameters are set in statute; the arbitration rationale is inapplicable to election disputes, and the invitation to apply it was declined.

p. 9

Legal principles established

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  • The Elections Act does not confer jurisdiction on the Court of Appeal to hear second appeals arising from elections of Members of County Assembly; such appeals end at the High Court on matters of law only.
  • Electoral proceedings are sui generis and the parameters of jurisdiction in election disputes are fixed by statute.

Court orders

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  1. 1.Preliminary objections raised by the 1st, 2nd and 3rd respondents upheld
  2. 2.Notice of appeal and record of appeal filed by the appellant struck out
  3. 3.Costs of the preliminary objections awarded to the respondents, capped at Kshs. 200,000 subject to taxation

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya
Election Petition Appeal No. E006 of 2023
Jurisdiction invoked
Preliminary objection on jurisdiction; Article 164(3) of the Constitution, sections 75(4) and 85A of the Elections Act, Article 163(7) of the Constitution
Consolidated with
Election Petition Appeal No. E007 of 2023 (cross-appeal)

Relief refused

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Leave to amend notice of appeal / hearing of the appeal on the merits

The Court lacks jurisdiction to entertain a second appeal in an MCA election dispute; no such appeal is provided for by the Elections Act and the Supreme Court has so affirmed.

p. 9

Application of Nyutu Agrovet residual-jurisdiction doctrine

Nyutu Agrovet concerned arbitration matters and is not applicable to electoral disputes.

p. 9

Costs

Costs awarded to the respondents, subject to taxation, capped at Kshs. 200,000.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The election appeals to this Court which are envisaged under the Elections Act are those concerning membership of the National Assembly, Senate, or the ofice of county governor.
p. 7Scope of section 85A Elections Act
The omission of a second or further appeal from the decision of the High Court under the said section is neither inadvertent nor an error but deliberate.
p. 8Legislative intent on finality of MCA election appeals
In conclusion, we uphold the preliminary objections raised by the 1st, 2nd and 3rd respondents. Consequently, we hereby strike out the notice of appeal and the record of appeal filed by the appellant.
p. 9Final orders - striking out for want of jurisdiction
We award costs thereof to the respondents, which, subject to taxation, we cap at Kshs.200,000.
p. 9Costs order

Issues in the judgment

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minor

Case title/case number of the present appeal before the Court of Appeal is not expressly stated in the judgment; recorded appeal numbers relate to the High Court proceedings.

minor

The judgment is a certified copy and lists 'D. K. MUSINGA (P)' whose title as President of the Court of Appeal is rendered as JA in the signature block; the IEBC is referred to as the 3rd respondent in the costs discussion but not formally introduced in the parties' narrative.

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, "Gedi v Gedi & 2 others (Election Petition Appeal E018 of 2023) [2023] KECA 1336 (KLR)", Case Analysis (2023). Court of Appeal Appeal from Election Petition Appeal Nos. E006 & E007 of 2023 (High Court, Garissa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1336/eng@2023-11-10

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