Kinyanjui & 5 others v Kalunga & 12 others (Election Petition Appeal E002 of 2023 & Election Petition Appeal (Application) E002 of 2023 (Consolidated)) [2024] KECA 317 (KLR)

Article 164(3)(a) is the constitutional foundation of the Court's jurisdiction, but it does not confer jurisdiction over all appeals from the High Court. Section 85A of the Elections Act expressly limits election petition appeals to this Court to matters concerning the National Assembly, Senate and county governor, on matters of law only. Section 75(1A) vests first-instance jurisdiction over County Assembly election validity in the magistrate's court, with a single appeal on matters of law to the High Court under section 75(4). The absence of any provision for a second appeal means the right does not exist. This position has been consistently adopted by this Court and affirmed by the Supreme Court, by which this Court is bound under Article 163(7).

The appellants invited the Court to reinterpret section 85A contrary to settled precedent. The Court reiterated that it is bound by decisions of courts superior to it, and that decisions of concurrent jurisdiction are only persuasive. Horizontally, departure is permissible only where prior decisions conflict, are inconsistent, or were per incuriam; none of those circumstances existed. Of decisive importance, the Supreme Court in Hamdia Yaroi Shek Nuri affirmed that no second appeal lies to the Court of Appeal in such matters, and under Article 163(7) this Court, like all other courts, is bound by that pronouncement.