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Court of AppealDismissedNot stated in the judgment

United Democratic Party & another v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition Appeal E017 of 2023) [2024] KECA 163 (KLR)

Court of Appeal
23 February 2024
DMD. K. MusingaKMK. M'InotiMNMumbi Ngugi
2,949 words in judgment
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The bottom line

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Kenya's Court of Appeal blocked UDM's attempt to take an MCA election dispute to the Supreme Court, ruling the issues were settled or purely personal.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, P, M'Inoti and Ngugi, JJ.A) delivered a single unanimous judgment at Nairobi on 23rd February 2024 in two consolidated applications for certification by United Democratic Movement (UDM) and Sokorey Maalim Isaakow. The applications arose from this Court's ruling of 10th November 2023 upholding a preliminary objection by the 2nd respondent, Abdow Bishar Maalim, that the Court lacked jurisdiction to hear a second appeal from the Magistrates' Court in a dispute over the election of a Member of the County Assembly, resulting in the striking out of UDM's notice and record of appeal. The applicants sought certification under Article 163(4)(b) of the Constitution that their intended appeals to the Supreme Court raised matters of general public importance, including the effect of the silence of sections 75(4) and 85A of the Elections Act on the right of a second appeal, the duty of an election court on nullification of party lists, and alleged breach of the 2nd applicant's right to a fair hearing in her removal as a nominated MCA. The IEBC and the 3rd respondent supported certification; the 2nd respondent opposed. Framing the sole dispositive issue as whether any issue of general public importance was raised, the Court applied the Hermanus Phillipus Steyn principles as restated in the Kenya Plantation case. It held that whether a second appeal lies in MCA election disputes was settled in Omwenga, Abiri and Hamid Yaroi Shek Nur; and that the matters raised concerned only the individual interests of the 2nd applicant, whose fair-hearing complaint did not of itself confer public importance. The applications were dismissed with costs to the 2nd respondent. This disposition binds no decision below - it concerns the certification stage only.

Key legal issues

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Certification test for matters of general public importance under Article 163(4)(b)

Holding

The applications fail the Hermanus Phillipus Steyn criteria: the issues either concern the individual position of one person or are already settled, and a mere apprehension of miscarriage of justice is not a basis for certification.

Reasoning

The Court applied the Steyn principles as restated in Kenya Plantation and Agricultural Workers Union, including the requirements that the issue transcend the parties' litigation interests, that the point of law be substantial and have arisen in the courts below, and that a mere apprehension of miscarriage of justice is not a proper basis for certification. Whether a second appeal lies in MCA election disputes was already settled in Omwenga, Abiri and Hamid Yaroi Shek Nur. The fair-hearing complaint of the 2nd applicant, who was not a party below, still concerned only her personal position and so lacked the broad-based public interest character required.

p. 6

Legal principles established

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  • Whether a second appeal lies to the Court of Appeal from a decision of the Magistrates' Court relating to the election of a member of a County Assembly is settled: it does not.
  • An issue affecting only the personal rights of one individual does not meet the Article 163(4)(b) threshold of general public importance, even where a fair-hearing complaint is made.

Court orders

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  1. 1.The two applications for certification as matters of general public importance are dismissed
  2. 2.Costs awarded to the 2nd respondent
On appeal from
Court of Appeal (ruling of the same Court dated 10th November 2023; the underlying appeal was from the High Court on appeal from the Magistrates' Court)
Not stated in the judgment
Jurisdiction invoked
Article 163(4)(b) of the Constitution - certification of matters of general public importance for appeal to the Supreme Court

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, "United Democratic Party & another v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition Appeal E017 of 2023) [2024] KECA 163 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/163/eng@2024-02-23

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