Richard Jesome Wasike v Anthony Lusenaka & 1 other
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear appeals in County Assembly election disputes, ending Wasike's attempt to revive his election petition challenge.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal over County Assembly election appeals
The Court of Appeal has no jurisdiction to hear an appeal from the High Court concerning the validity of the election of a Member of the County Assembly; the omission of a second appeal in section 75(4) and non-inclusion in section 85A of the Elections Act were deliberate legislative choices.
Section 75(4) of the Elections Act provides that appeals from the Magistrate's Court in County Assembly election disputes lie to the High Court on matters of law only. Section 85A, which confers on the Court of Appeal jurisdiction over appeals from the High Court in election petitions, covers only the National Assembly, Senate and County Governor. The deliberate exclusion of the County Assembly, following binding Supreme Court authority, means the High Court is the final appellate forum for such disputes, consistent with Article 87's scheme for timely settlement of electoral disputes.
Priority of jurisdiction over extension-of-time considerations
Jurisdiction must be resolved before any consideration of the merits or the rule 4 criteria; without jurisdiction the application cannot be entertained at all.
Applying Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, the single judge held that the question of jurisdiction had to be addressed first. Since no appeal lies to the Court of Appeal from the High Court in a County Assembly election matter, rule 4 of the Court of Appeal Rules has no application, and the application for extension of time collapses without regard to the applicant's explanations for delay.
Timeliness of election petitions
Election petitions are time-bound and must be determined within six months of filing, after which proceedings become a nullity; reopening them after the statutory timelines would be futile.
The court observed that the applicant's petition was filed on 7th September 2022, a date of juridical significance in assessing whether any court could still act. Combined with rule 23 of the Court of Appeal (Election Petition) Rules 2017 requiring an appeal to be heard and determined within six months of the High Court judgment, the statutory framework forecloses any extension that would revive the lapsed proceedings.
Legal principles established
#- The Court of Appeal has no jurisdiction to entertain a second appeal from the High Court regarding the validity of the election of a Member of the County Assembly; County Assembly election appeals terminate at the High Court under section 75(4) of the Elections Act, with no second appeal provided in section 85A.
- Where a court has no jurisdiction, it must stop proceedings at once and cannot entertain even threshold matters such as an application under rule 4.
- An election petition must be heard and determined within six months from the date of filing, after which the proceedings become a nullity.
Court orders
#- 1.The application for extension of time within which to file and serve the Notice of Appeal and Record of Appeal is dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- High Court of Kenya at Bungoma
- Bungoma High Court Election Civil Appeal No. E002 of 2022
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (application); the court examined whether section 85A of the Elections Act confers appellate jurisdiction over County Assembly election appeals and found none
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Jesome Wasike v Anthony Lusenaka & 1 other", Case Analysis (2023). Court of Appeal Application (Rule 4) arising from intended appeal against Bungoma High Court Election Civil Appeal No. E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1368/eng@2023-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.