Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedElection Petition (Application) 9 of 2019 & Application 33 of 2019 (Consolidated)

Peter Bodo Okal v Philemon Juma Ojuok & 2 others

Supreme Court of Kenya
30 April 2020
871 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

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

#
The applicant, George Omondi Ochieng, contested the election for Member of County Assembly for Central Nyakach Ward, Kisumu County. The magistrate's court allowed his election petition, but the High Court reversed that decision and declared the 1st respondent the winner. The applicant appealed to the Court of Appeal, but the respondents challenged the competence of that appeal, arguing that no second appeal lies from a High Court decision concerning a county assembly election. The Court of Appeal agreed and struck out the appeal on February 14, 2019. The applicant then filed two applications in the Supreme Court: one seeking extension of time and leave to appeal out of time (No. 9 of 2019), and another seeking a stay of execution (No. 33 of 2019). The Supreme Court, in a unanimous judgment delivered on April 30, 2020, dismissed both applications. The Court held that, following its recent decision in Hamdia Yaroi Shek Nuri v. Tumaini Kombe & 2 others, no second appeal lies to the Court of Appeal from the High Court in election petitions concerning the validity of the election of a member of county assembly. Consequently, the Supreme Court had no jurisdiction to entertain an appeal from the Court of Appeal's decision striking out the appeal. The Court therefore did not consider the merits of the extension of time application. The applicant was ordered to bear the costs of both applications.

Questions the Court framed

#

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

  1. 1.whether this Court has jurisdiction to entertain an appeal in this matter
  2. 2.whether the applicant has given a satisfactory explanation for the delay

Key legal issues

#
01

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.

Holding

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.

Reasoning

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.

02

Whether the applicant gave a satisfactory explanation for the delay in filing the appeal.

Holding

The Court did not determine this issue because it found it lacked jurisdiction.

Reasoning

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. 1.The application (No. 9 of 2019) dated March 28, 2019 is hereby dismissed.
  2. 2.The application (No. 33 of 2019) dated November 10, 2019 is hereby dismissed.
  3. 3.The applicant to bear the costs of both applications.

The bench

#

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

majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
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
p. 2 Jurisdiction of the Court of Appeal in county assembly election petitions
The application (No. 9 of 2019) dated March 28, 2019 is hereby dismissed.
p. 3 Final orders
The application (No. 33 of 2019) dated November 10, 2019 is hereby dismissed.
p. 3 Final orders
The applicant to bear the costs of both applications.
p. 3 Costs order

Key timeline

#
2017-08-08
General election for Member of County Assembly, Central Nyakach Ward, Kisumu County.
2018-01-01
Magistrate's court allows George Omondi Ochieng's election petition.
2018-06-01
High Court reverses magistrate's decision, declares Mary Adhiambo Ochieng the winner.
2019-02-14
Court of Appeal strikes out Ochieng's second appeal for lack of jurisdiction.
2019-03-28
Ochieng files application No. 9 of 2019 in Supreme Court for extension of time to appeal.
2019-11-10
Ochieng files application No. 33 of 2019 for stay of execution.
2020-04-30
Supreme Court dismisses both applications, confirms no jurisdiction.

Practical implications

#
For lawyers

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.

For businesses

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.

For individuals

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.

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.