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Supreme CourtDismissedPetition 13 of 2018

Musa Cherutich Sirma v Independent Electoral and Boundaries Commission & 2 others

Supreme Court of Kenya
18 January 2019
David Kenani MaragaD. K. MaragaMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
7,374 words in judgment
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The bottom line

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Supreme Court dismisses election appeal for failing to prove Court of Appeal misinterpreted the Constitution.

What this practically means

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The Supreme Court can only hear certain appeals if the Court of Appeal actually interpreted the Constitution. In this case, the Court of Appeal only applied Article 159(2)(d) (which allows courts to ignore technicalities), not the other rights the appellant claimed. The Supreme Court also refused to overturn the decision to strike out the appeal for late filing, because the appellant did not show the Court of Appeal was unreasonable or wrong.

Executive summary

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The petitioner, John Kipngeno Koech, appealed to the Supreme Court under Article 163(4)(a) of the Constitution against a Court of Appeal ruling that struck out his Notice of Appeal and Record of Appeal in an election petition. The Court of Appeal had found that the Notice of Appeal was filed at the High Court registry in Kabarnet instead of the Court of Appeal registry in Nakuru, contrary to Rule 6 of the Court of Appeal (Election Petition) Rules, 2017, and that no evidence was presented to show that a Court of Appeal official misdirected the petitioner's clerk. The Supreme Court first addressed jurisdiction, holding that it had jurisdiction limited to the issue of the extent of application of Article 159(2)(d) of the Constitution in determining the effect of non-compliance with the Rules, as that was the only constitutional provision interpreted by the Court of Appeal. The Court rejected the petitioner's argument that violations of Articles 25, 38, 48, and 50 were at issue, stating that dissatisfaction with a decision does not elevate it to a constitutional question. On the merits, the Court declined to interfere with the Court of Appeal's exercise of discretion under Rule 5, finding that the petitioner had not shown that the Court of Appeal acted arbitrarily, unreasonably, in violation of the law, or that its decision was plainly wrong and caused undue prejudice. The Court noted that the Court of Appeal had considered the unique circumstances and applied relevant precedents. Consequently, the Supreme Court dismissed the petition and ordered each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal meets the jurisdictional threshold under article 163(4)(a) of the Constitution.
  2. 2.Whether this court should interfere with the exercise of discretion by the Court of Appeal under rule 5 of the Court of Appeal (Election Petition) Rules, 2017.
  3. 3.What reliefs are available to Parties?
  4. 4.Costs.

Key legal issues

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01

Whether the appeal meets the jurisdictional threshold under article 163(4)(a) of the Constitution.

Holding

The Supreme Court has jurisdiction under article 163(4)(a) limited to the issue of the extent of application of article 159(2)(d) of the Constitution in determining the effect of non-compliance with the Court of Appeal Rules, 2017, as that was the only constitutional provision interpreted by the Court of Appeal.

Reasoning

The Court examined the Court of Appeal's reasoning and found that the only constitutional provision that was a subject of interpretation was article 159(2)(d), which was invoked alongside rule 5 of the Court of Appeal Rules. The petitioner's allegations of violations of articles 25, 38, 48, and 50 were not the subject of interpretation by the Court of Appeal and therefore could not found jurisdiction. The Court distinguished the case from Ngoge where no constitutional interpretation was involved.

p. 12
02

Whether this court should interfere with the exercise of discretion by the Court of Appeal under rule 5 of the Court of Appeal (Election Petition) Rules, 2017.

Holding

The Supreme Court declined to interfere with the Court of Appeal's exercise of discretion, finding that the appellant had not shown that the Court of Appeal acted arbitrarily, unreasonably, in violation of the law, or that its decision was plainly wrong and caused undue prejudice.

Reasoning

The Court applied the principles from Deynes Muriithi and other cases, stating that it would only interfere if the discretion was exercised arbitrarily or capriciously, or if relevant facts were ignored. The Court noted that the Court of Appeal had considered the unique circumstances, including the lack of evidence that a registry official misled the appellant's clerk, and had applied the principles from Nicholas Salat and Raila Odinga 2013. The Court found no basis to disturb that decision.

p. 15

Legal principles established

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  • Appeals to the Supreme Court under Article 163(4)(a) must show the Court of Appeal interpreted a specific constitutional provision.
  • Mere reference to constitutional rights without actual interpretation by the Court of Appeal does not give the Supreme Court jurisdiction.
  • The Supreme Court will only interfere with a lower court's discretion if it was arbitrary, unreasonable, illegal, or plainly wrong causing prejudice.
  • Article 159(2)(d) can excuse non-compliance with court rules, but the circumstances must justify it—the Court of Appeal has discretion.
  • Each party bears its own costs unless the court orders otherwise—no automatic costs for the winner.

Court orders

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  1. 1.The Petition of Appeal dated June 26, 2018 is hereby dismissed.
  2. 2.Each party shall bear its own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nakuru
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Setting aside the Ruling and subsequent orders of the Court of Appeal delivered on May 31, 2018

The Court found no basis to interfere with the Court of Appeal's exercise of discretion.

p. 16

Remittal of the appeal to the Court of Appeal for hearing on merit

The Court held that the notice of appeal was properly struck out, so no record of appeal could stand.

p. 16

Costs

Each party shall bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Petition of Appeal dated June 26, 2018 is hereby dismissed.
p. 16 Final orders
Each party shall bear its own costs.
p. 16 Costs order
the petitioner, such as in this case, must show how the Appellate Court disposed of the matter by way of interpreting or applying a particular provision of the Constitution.
p. 11 Jurisdiction under Article 163(4)(a)
It is apparent to us in the above context that the issue in controversy in this case is the extent of the application of article 159(2)(d) of the Constitution in determining the effect of non-compliance with the Court of Appeal Rules, 2017 as opposed to violation of articles 25, 38 and 50 as submitted by counsel for the petitioner.
p. 12 Scope of jurisdiction

Key timeline

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Prior to 2018-06-26
Court of Appeal strikes out the appellant's notice of appeal for filing at the wrong registry.
2018-06-26
Petition of Appeal filed in the Supreme Court challenging the Court of Appeal ruling.
Unknown
Supreme Court delivers judgment dismissing the appeal and affirming the Court of Appeal decision.

Practical implications

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For lawyers

Frame Supreme Court appeals carefully

When appealing under Article 163(4)(a), you must demonstrate exactly how the Court of Appeal interpreted the Constitution—not just list violated rights. Here, the appellant cited articles 25, 38, 48, and 50, but the Court of Appeal only interpreted Article 159(2)(d). To avoid dismissal, your petition must link the lower court's reasoning to a specific constitutional provision it actually construed.

For businesses

Election disputes have strict timelines

Although this is an election petition, the principle applies to any appeal: strict compliance with filing rules matters. The Court of Appeal struck out the appeal for filing at the wrong registry. If you are involved in a business dispute that goes to the Court of Appeal, ensure your legal team files documents at the correct registry and within the prescribed time to avoid losing your appeal on technical grounds.

For individuals

Not all errors are appealable

If you lose a case at the Court of Appeal, you cannot automatically appeal to the Supreme Court. The Supreme Court only hears appeals involving constitutional interpretation or matters of general public importance. Even if the Court of Appeal made a mistake, you must show that mistake involved interpreting the Constitution. For example, missing a filing deadline is not a constitutional issue unless the court misapplied constitutional principles.

Frequently asked questions

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What does Article 163(4)(a) of the Kenyan Constitution mean for appeals?+

It allows appeals to the Supreme Court from the Court of Appeal only if the case involves the interpretation or application of the Constitution. You must show the Court of Appeal actually interpreted a constitutional provision—not just that you mentioned constitutional rights. Otherwise, the Supreme Court will not hear the appeal.

When can the Supreme Court overturn a Court of Appeal decision in Kenya?+

The Supreme Court can only overturn a Court of Appeal decision if it acted arbitrarily, unreasonably, illegally, or made a decision that is plainly wrong and causes prejudice. The court will not interfere just because it disagrees with the outcome. The appellant must prove the lower court abused its discretion.

What happens if you file a notice of appeal at the wrong registry in Kenya?+

The Court of Appeal has discretion to strike out the appeal for non-compliance with rules. However, under Article 159(2)(d), the court can excuse the mistake if it is satisfied that the error was not intentional and no prejudice is caused. But the burden is on the appellant to provide evidence of a valid reason, like being misled by court officials.

Can the Supreme Court hear an appeal if the Court of Appeal did not interpret the Constitution?+

No. The Supreme Court will only hear appeals under Article 163(4)(a) if the Court of Appeal actually interpreted a constitutional provision. If the Court of Appeal simply applied a statute or rule without interpreting the Constitution, the Supreme Court lacks jurisdiction—even if constitutional rights are mentioned in the petition.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Musa Cherutich Sirma v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2019). Petition 13 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/64/eng@2019-01-18

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