Peter Bodo Okal v Philemon Juma Ojuok & 2 others
The bottom line
#Supreme Court cannot hear appeals on county assembly election disputes.
What this practically means
#The Supreme Court dismissed George Omondi Ochieng's attempt to appeal a county assembly election result. The Court ruled that the law does not allow a second appeal from the High Court to the Court of Appeal in these cases. Since the Court of Appeal had no power to hear the case, the Supreme Court also lacked jurisdiction. This means the High Court's decision on who won the Central Nyakach Ward seat is final.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether this Court has jurisdiction to entertain an appeal in this matter
- 2.whether the applicant has given a satisfactory explanation for the delay
Key legal issues
#Whether the Supreme Court has jurisdiction to entertain an appeal from a Court of Appeal decision striking out a second appeal from a High Court decision on a county assembly election petition.
The Supreme Court has no jurisdiction because no second appeal lies to the Court of Appeal from the High Court in such matters, so there is no valid appeal from which a further appeal to the Supreme Court can arise.
The Court relied on its recent decision in Hamdia Yaroi Shek Nuri v. Tumaini Kombe & 2 others, which held that section 75(4) of the Elections Act does not confer a right of appeal from the High Court to the Court of Appeal on an election petition challenging the validity of the election of a member of county assembly. Since the Court of Appeal had no jurisdiction to entertain the second appeal, its decision striking it out was correct, and the Supreme Court cannot acquire jurisdiction over a matter that was not properly before the Court of Appeal.
Whether the applicant gave a satisfactory explanation for the delay in filing the appeal.
The Court did not determine this issue because it found it lacked jurisdiction.
Having determined that the Supreme Court had no jurisdiction to entertain the appeal, the Court held that it did not need to consider the merits of the application for extension of time, including whether the applicant had given a satisfactory explanation for the delay.
Legal principles established
#- No second appeal lies from the High Court to the Court of Appeal in county assembly election petitions.
- The Supreme Court cannot hear an appeal if the Court of Appeal had no jurisdiction over the original appeal.
- Section 75(4) of the Elections Act does not create a right of appeal for county assembly election disputes beyond the High Court.
- A court must first establish its jurisdiction before considering any other issues in a case.
- The Supreme Court will not review the merits of an application if it lacks jurisdiction to hear the main appeal.
Court orders
#- 1.The application (No. 9 of 2019) dated March 28, 2019 is hereby dismissed.
- 2.The application (No. 33 of 2019) dated November 10, 2019 is hereby dismissed.
- 3.The applicant to bear the costs of both applications.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Kisumu
- Election Petition Appeal No. 19 of 2018
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution
- Consolidated with
- Supreme Court Application No. 33 of 2019
Relief refused
#Extension of time and leave to file a Petition of Appeal out of time
This Court has no jurisdiction to entertain an appeal in this matter
Stay of execution of the decree and order of taxation
This determination renders consideration of application No. 33 of 2016 otiose
Costs
The applicant to bear the costs of both applications.
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.
in the absence of an express statutory provision, no second appeal lies to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of county assembly
The application (No. 9 of 2019) dated March 28, 2019 is hereby dismissed.
The application (No. 33 of 2019) dated November 10, 2019 is hereby dismissed.
The applicant to bear the costs of both applications.
Key timeline
#Practical implications
#Finality of county assembly election appeals
When handling county assembly election petitions, advise clients that the High Court's decision is final. Do not file a second appeal to the Court of Appeal, as it will be struck out for lack of jurisdiction. Any subsequent attempt to reach the Supreme Court will also fail. Focus your litigation strategy on the High Court stage.
Stable local government election outcomes
Businesses operating in counties should note that county assembly election disputes end at the High Court. This provides faster finality for local leadership, reducing prolonged uncertainty that can affect business permits, market access, or local regulations. Plan for transitions knowing the legal challenge window is limited.
Limited appeal options for MCA elections
If you are a candidate or voter challenging a Member of County Assembly election, you only have one appeal: from the magistrate's court to the High Court. The High Court's ruling is final. You cannot appeal further to the Court of Appeal or Supreme Court. Ensure you present all evidence at the High Court stage.
Frequently asked questions
#Can I appeal a High Court decision on a county assembly election in Kenya?+
No. The Supreme Court confirmed that the Elections Act does not allow a second appeal from the High Court to the Court of Appeal for Member of County Assembly election disputes. The High Court's decision is final.
What happens if I try to appeal an MCA election case to the Supreme Court in Kenya?+
The Supreme Court will dismiss your case for lack of jurisdiction. As seen in George Omondi Ochieng v. Mary Adhiambo Ochieng, the Court cannot hear appeals from county assembly election petitions because no valid appeal exists from the High Court.
Why was George Omondi Ochieng's election appeal dismissed by the Supreme Court in Kenya?+
The Supreme Court dismissed his appeal because the law does not provide for a second appeal from the High Court in county assembly election cases. Since the Court of Appeal had no jurisdiction, the Supreme Court also lacked jurisdiction to hear the matter.
Is the High Court decision final for all election petitions in Kenya?+
No, only for Member of County Assembly elections. For presidential, gubernatorial, senatorial, and parliamentary elections, further appeals to the Court of Appeal and Supreme Court are allowed under the Elections Act.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gedi v Gedi & 2 others (Election Petition Appeal E018 of 2023) [2023] KECA 1336 (KLR)[2023] KECA 1336 (KLR)10 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Peter Bodo Okal v Philemon Juma Ojuok & 2 others", Case Analysis (2020). Election Petition (Application) 9 of 2019 & Application 33 of 2019 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/51/eng@2020-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.