Ondari v Mangera & 2 others (Election Petition Civil Application E015 of 2024) [2024] KECA 205 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend a 61-day delay in filing an MCA election appeal, confirming there is no second appeal from the High Court in such disputes.
What this practically means
#Executive summary
#Key legal issues
#Extension of time in electoral disputes
Extension of time in electoral disputes is available but only in exceptional circumstances and where the dictates of justice so require
The Court endorsed Sumra Irshadali v IEBC and applied the Salat principles, holding that while courts can extend statutory electoral timelines in appropriate cases, the constitutional value of timely resolution of electoral disputes confines such extension to exceptional circumstances. The Rule 4 factors must be read against the Salat guidelines, including public interest.
Inordinate and unexplained delay
A 61-day delay after the Supreme Court's refusal to transfer the appeal, unexplained by the applicant, is inordinate and inexcusable in an electoral dispute
Although the applicant blamed his previous advocate for filing in the wrong court, he offered no explanation for the 61 days between the Supreme Court's order of 8th December, 2023 and the application of 7th February, 2024. Given the statutory seven-day filing window for appeals, the delay was inordinate, making it unnecessary to assess the appeal's chances of success.
Jurisdiction over second appeals in MCA elections
The Court of Appeal has no jurisdiction to entertain a second appeal from the High Court on the validity of election of a Member of the County Assembly
Both the Supreme Court and the Court of Appeal have consistently held that the absence of a second or further appeal provision under section 75(4) of the Elections Act was a deliberate legislative choice ending electoral challenges to MCA seats at the High Court. The intended appeal would therefore be stillborn even if time were extended.
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, as the omission of a second appeal under section 75(4) of the Elections Act was deliberate
- In electoral disputes, the Court of Appeal may extend time only in exceptional circumstances given the constitutional value of timely resolution of electoral disputes
- The Supreme Court's decision in Hamdia Yaroi Shek Nuri binds the Court of Appeal on the absence of a second appeal in MCA election disputes
Court orders
#- 1.The application dated 7th February, 2024 is dismissed
- 2.No costs assessed against the applicant as the application was unopposed
- On appeal from
- High Court of Kenya, Nyamira
- Election Appeal (judgment dated 6th July, 2023)
- Jurisdiction invoked
- Rules 4, 82 and 90 of the Court of Appeal Rules; sections 3, 3A and 3(b) of the Appellate Jurisdiction Act; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondari v Mangera & 2 others (Election Petition Civil Application E015 of 2024) [2024] KECA 205 (KLR)", Case Analysis (2024). Application dated 7th February, 2024 (Election Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/205/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.