Gedi v Gedi & 2 others (Election Petition Appeal E018 of 2023) [2023] KECA 1336 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the Court of Appeal has jurisdiction over a second appeal in an MCA election dispute
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).
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.
Whether the Nyutu Agrovet residual jurisdiction doctrine applies to permit the appeal
No. Nyutu Agrovet concerned arbitration disputes and cannot be transplanted into electoral matters, which are strictly statutory.
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.
Legal principles established
#- 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
#- 1.Preliminary objections raised by the 1st, 2nd and 3rd respondents upheld
- 2.Notice of appeal and record of appeal filed by the appellant struck out
- 3.Costs of the preliminary objections awarded to the respondents, capped at Kshs. 200,000 subject to taxation
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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.
Application of Nyutu Agrovet residual-jurisdiction doctrine
Nyutu Agrovet concerned arbitration matters and is not applicable to electoral disputes.
Costs
Costs awarded to the respondents, subject to taxation, capped at Kshs. 200,000.
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.
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.
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.
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.
We award costs thereof to the respondents, which, subject to taxation, we cap at Kshs.200,000.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.