Sammy Kemboi Kipkeu v Bowen David Kangogo & 2 others
The bottom line
#Supreme Court cannot hear election appeals unless they involve interpreting the Constitution itself.
What this practically means
#The Supreme Court struck out an election appeal because it lacked jurisdiction. The case was about election irregularities, not constitutional interpretation. The Court clarified that just because election laws come from the Constitution does not mean every election appeal qualifies for Supreme Court review. The appeal must directly involve interpreting or applying a constitutional provision. The Court of Appeal's decision upholding the election result stands.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court has jurisdiction to determine the Appeal
- 2.Whether the Court of Appeal acted in excess of its jurisdiction under section 85 A of the Elections Act
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal from the Court of Appeal in an election petition where the main questions revolved around burden and standard of proof, scrutiny findings, and the effect of irregularities under section 83 of the Elections Act.
The Supreme Court lacks jurisdiction because the appeal does not involve any question of the interpretation or application of the Constitution; the issues were resolved on settled legal principles established by the Court in earlier decisions, not through constitutional interpretation.
The Court examined the grounds of appeal and the issues determined by the lower courts. It found that the core questions—burden and standard of proof, the effect of scrutiny findings, and the application of section 83 of the Elections Act—were all resolved based on established legal principles from prior Supreme Court decisions, not through any novel interpretation of the Constitution. The Court emphasized that the statement in Munya 1 that the Elections Act is a normative derivative of the Constitution does not automatically trigger Article 163(4)(a) jurisdiction; an appellant must still demonstrate that the appeal involves constitutional interpretation or application.
Whether the Court of Appeal acted in excess of its jurisdiction under section 85A of the Elections Act by considering matters of fact.
The Court of Appeal did not act in excess of its jurisdiction; it properly appreciated the frontiers of section 85A as established by the Supreme Court in the Munya case.
The Supreme Court reviewed the Court of Appeal's judgment and concluded that the appellate court fully understood the limits of its jurisdiction under section 85A, which allows it to consider matters of fact only to determine whether the trial court's conclusions were supported by evidence. The Court found no basis to conclude that the Court of Appeal exceeded its jurisdiction.
Legal principles established
#- Appeals to the Supreme Court under Article 163(4)(a) require a genuine constitutional interpretation issue, not just election law questions.
- The Elections Act being derived from the Constitution does not automatically give the Supreme Court jurisdiction over election appeals.
- The Court of Appeal can review factual findings from an election trial to check if evidence supports the conclusions.
- Burden of proof, scrutiny findings, and irregularities under section 83 of the Elections Act are settled legal principles, not constitutional interpretation.
- A preliminary objection on jurisdiction can be raised and decided before hearing the appeal's merits.
Court orders
#- 1.The preliminary objection is hereby allowed.
- 2.The Petition of Appeal is hereby struck out.
- 3.The Judgment of the Court of Appeal dated July 12, 2018 is hereby upheld.
- 4.For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of Member of Parliament for Marakwet East Constituency is hereby affirmed.
- 5.The petitioner shall bear his own costs and the costs of the 1st respondent.
- 6.The 2nd respondent shall bear its own costs and those of the 3rd respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Eldoret
- Election Petition Appeal No 15 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#An order setting aside the decision and Order of the Court of Appeal and substituting the same with an Order allowing this appeal and reinstating the Judgment of the Election Court
The Supreme Court lacked jurisdiction under Article 163(4)(a) as the appeal did not involve any question of the interpretation and application of the Constitution.
An order declaring that the 1st respondent was not validly elected as a Member of the National Assembly for Marakwet East Constituency
The appeal was struck out for lack of jurisdiction.
An order directing the 2nd and 3rd respondents to conduct a by election for the Member of National Assembly of Marakwet East Constituency
The appeal was struck out for lack of jurisdiction.
An order awarding costs in this appeal, in the Court of Appeal and the High Court to the petitioner, payable by the respondents jointly and severally
The appeal was struck out and the petitioner was ordered to bear his own costs and those of the 1st respondent.
Costs
The petitioner shall bear his own costs and the costs of the 1st respondent. The 2nd respondent shall bear its own costs and those of the 3rd 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.
We have no hesitation in holding that the Petition of Appeal cannot be sustained as it does not involve any question of the interpretation and application of the Constitution.
We wish to reiterate that the foregoing statement, is not a Carte Blanche for invoking this court’s jurisdiction under article 163(4)(a) of the Constitution.
Key timeline
#Practical implications
#Limit Supreme Court appeals to constitutional issues
When drafting election petitions, focus on constitutional interpretation if you plan to appeal to the Supreme Court. Purely statutory or factual challenges under the Elections Act will be struck out. Frame grounds of appeal around specific constitutional provisions, not just settled principles from prior cases.
Election challenges have limited appeal routes
If you are involved in political campaigns or funding, understand that election disputes end at the Court of Appeal unless a constitutional question arises. This finality reduces uncertainty for businesses that rely on stable political outcomes. Plan for election-related legal costs accordingly.
Know your appeal rights in election disputes
As a voter or candidate, you cannot automatically take an election case to the Supreme Court. The Court only hears appeals involving constitutional interpretation. If your case is about ballot irregularities or evidence issues, the Court of Appeal is the final stop. Check with a lawyer before filing a Supreme Court appeal.
Frequently asked questions
#Can I appeal an election petition to the Supreme Court in Kenya?+
Only if your appeal involves interpreting or applying the Constitution. Election law issues like ballot irregularities or scrutiny findings do not qualify. The Supreme Court struck out this appeal because it raised no constitutional question, just settled legal principles.
What is Article 163(4)(a) of the Kenyan Constitution?+
It allows appeals to the Supreme Court as of right in cases involving the interpretation or application of the Constitution. This does not cover every election dispute. The Court clarified that the Elections Act being derived from the Constitution does not automatically trigger this right.
What happened in the Sammy Kemboi Kipkeu case in Kenya?+
The Supreme Court struck out his appeal challenging the Court of Appeal's decision that upheld David Bowen's election as Marakwet East MP. The Court found it lacked jurisdiction because the appeal raised no constitutional interpretation issue, only election law questions.
Does the Court of Appeal have jurisdiction to review facts in election petitions in Kenya?+
Yes, but only to check if the trial court's conclusions were supported by evidence. The Supreme Court confirmed this in the Kipkeu case, stating the Court of Appeal properly understood its limits under section 85A of the Elections Act.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Standard Chartered Financial Services Ltd v Manchester Outfitters (Suiting Division) Limited now called King Woolen Mills Ltd & 2 others[2024] KESC 50 (KLR)30 Aug 2024
- Kisaka v University of Nairobi (Petition 7 of 2019) [2023] KEELRC 1795 (KLR)[2023] KEELRC 1795 (KLR)25 Jul 2023
- Institute for Social Accountability & another v National Assembly of Kenya & 4 others[2020] KESC 74 (KLR)4 Aug 2020
- Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others[2019] KESC 42 (KLR)29 Apr 2019followed
Cite this brief
#Cite this brief
Caselaw, "Sammy Kemboi Kipkeu v Bowen David Kangogo & 2 others", Case Analysis (2019). Petition 23 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/60/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.