Kering v Torome & 5 others (Election Petition Appeal (Application) E078 of 2023) [2024] KECA 295 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear second appeals in County Assembly election disputes, so a nominated MCA's injunction application was struck out with costs.
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 a second appeal arising from the election of a Member of a County Assembly
- 2.Whether the notice of appeal and the application for injunction should be struck out
Key legal issues
#Jurisdiction of the Court of Appeal over second appeals in County Assembly election petitions
The Court has no jurisdiction; Section 85A of the Elections Act, following the Supreme Court's binding decisions in Munya and Hamdia Yaroi Shek Nuri, confines Court of Appeal election appeals to the National Assembly, Senate and county governor. High Court is the final appellate port for MCA election disputes.
The court traced Section 85A and Section 75(4) of the Elections Act, noting the Supreme Court in Hamdia Yaroi Shek Nuri held that the statutory silence on second appeals in MCA election petitions is a deliberate mechanism under Article 87 for timely settlement of electoral disputes, not a constitutional defect. Being bound by Supreme Court decisions, the Court of Appeal declined to assume jurisdiction.
Whether the absence of a right of appeal in Section 85A for MCA elections violates the constitutional right of appeal
No. Limiting the scope and level of appeal in election petitions is a valid legislative mechanism under Article 87 and does not violate Article 164(3)(a).
Relying on the Supreme Court's exposition, the court held that Article 87 requires mechanisms, not merely timelines, for the timely settlement of electoral disputes, and that limiting the level of appeal is such a mechanism. What appears as a limitation of Article 164(3)(a) jurisdiction is borne out of Article 87 itself; the Constitution cannot subvert itself.
Whether the injunction preserving the substratum of the intended appeal should issue
It could not be considered, as the application and notice of appeal were filed before a court devoid of jurisdiction and were struck out.
Jurisdiction being foundational, a court without it must down its tools at the outset. Since no second appeal lies in MCA election matters, the intended appeal and the interlocutory injunction application were incompetent and had to be struck out with costs to the 1st respondent.
Legal principles established
#- The Court of Appeal has no jurisdiction to hear a second appeal from the High Court in an election petition concerning membership of a County Assembly; Section 85A of the Elections Act confers such appeals only for the National Assembly, Senate and county governor
- A right of appeal is not inherent; it must be expressly conferred by statute and cannot be implied or inferred
Court orders
#- 1.Upheld the 1st respondent's preliminary objection
- 2.Struck out the application dated 20th September 2023
- 3.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Section 85A of the Elections Act; Article 164(3)(a) and Article 87 of the Constitution - court held it lacked jurisdiction
Relief refused
#Order of injunction restraining the 2nd and 4th respondents from declaring vacant and filling the position held by the applicant
The Court lacked jurisdiction to entertain the intended appeal; the notice of appeal and application were filed before a court devoid of jurisdiction
Costs
Costs of the application awarded to the 1st respondent
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.
It follows therefore that the Court of Appeal does not have jurisdiction to hear and determine issues regarding the validity of the election of a member of the County Assembly. This is the preserve of the Magistrates Court and an appeal is to be taken to the High Court on matters of law only.
we uphold the 1st respondent's preliminary objection and hold that the application dated 20th September 2023 lacks merit and it is struck out with costs to the 1st respondent. Orders accordingly.
The Court of Appeal has on many occasions similarly held that a right of appeal must expressly be conferred by Statute and such right cannot be implied or inferred.
It is trite that jurisdiction is everything, and it gives a court or a tribunal the power, authority, and legitimacy to entertain any matter before it.
Issues in the judgment
#The judgment quotes the Supreme Court in Hamdia Yaroi Shek Nuri as stating 'the Supreme Court stated that: "The foregoing analysis leads us to the conclusion... no second appeal lies to the Court of Appeal..."' but elsewhere the same case is described as a Court of Appeal decision the applicant asked the court to re-look, creating ambiguity as to which court rendered the quoted passage
Parties' full names and the case number of the underlying appeal are not stated in the judgment; the applicant, 1st, 2nd and 4th respondents are identified only by role
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kering v Torome & 5 others (Election Petition Appeal (Application) E078 of 2023) [2024] KECA 295 (KLR)", Case Analysis (2024). Application dated 20th September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/295/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.