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Supreme CourtStruck OutPetition E017 of 2023· [2023] KESC 101 (KLR)

Adam v Jiir & 3 others

Supreme Court of Kenya
8 December 2023
8,747 words in judgment
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AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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Supreme Court strikes out election appeal for invalid notice of appeal.

What this practically means

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The Supreme Court of Kenya dismissed an appeal about the Wajir County governor election. The appellant filed his notice of appeal at the wrong court registry, making it invalid. The Court of Appeal had already struck out the case for this reason. The Supreme Court agreed, saying that a valid notice of appeal is a must for any appeal to proceed. Constitutional principles like Article 159 cannot fix such a basic mistake. The appeal was struck out with costs.

Executive summary

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The Supreme Court of Kenya delivered reasons for its ex tempore judgment of September 8, 2023, striking out the appellant's petition of appeal against the Court of Appeal's ruling. The appellant, Hassan Mohammed Adam, had challenged the gubernatorial election results for Wajir County. The High Court dismissed his election petition, and he appealed to the Court of Appeal. The respondents raised a preliminary objection challenging the Court of Appeal's jurisdiction on the ground that the notice of appeal was fatally flawed: it was filed at the High Court registry in Garissa instead of the Court of Appeal registry, and it did not comply with the format prescribed by the Court of Appeal (Election Petition) Rules, 2017. The Court of Appeal upheld the preliminary objection and struck out the notice of appeal and record of appeal. The appellant appealed to the Supreme Court under Article 163(4)(a) of the Constitution, arguing that the Court of Appeal violated his rights to a fair hearing and access to justice by relying on non-existent draft rules. The Supreme Court first addressed its own jurisdiction, holding that issues surrounding a notice of appeal are jurisdictional in nature and therefore fall within its jurisdiction under Article 163(4)(a). On the merits, the court found no reasonable basis to interfere with the Court of Appeal's exercise of discretion. The appellant had conceded that the first notice of appeal was filed in the wrong court, and the second notice of appeal was not part of the record and was identical in form and content to the first. The court emphasized that Article 159(2)(d) is not a panacea for all procedural shortfalls, and that the Court of Appeal's powers under rule 5 of the Election Petition Rules are discretionary. The court also noted that the six-month timeline for hearing the appeal before the Court of Appeal had already lapsed. Consequently, the Supreme Court struck out the petition of appeal with costs to the respondents.

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal concerning the competency of a notice of appeal filed in the Court of Appeal.

Holding

The Supreme Court has jurisdiction under Article 163(4)(a) because issues surrounding a notice of appeal are jurisdictional in nature and involve the interpretation and application of the Constitution.

Reasoning

The appellant grounded his appeal on alleged violations of Articles 27, 50(1), and 159 of the Constitution in the context of interpreting the Court of Appeal (Election Petition) Rules, 2017. The court distinguished this from a mere factual dispute about compliance with rules, noting that the notice of appeal is a jurisdictional prerequisite. The court relied on its previous decisions in Musa Cherutich Sirma and Francis Wambugu Mureithi where it assumed jurisdiction in similar circumstances. The court rejected the respondents' argument that the appeal only involved interpretation of rules and not the Constitution.

02

Whether the Court of Appeal properly exercised its discretion in striking out the appellant's notice of appeal and record of appeal.

Holding

The Court of Appeal properly exercised its discretion, and the Supreme Court found no reasonable basis to interfere with that decision.

Reasoning

The appellant conceded that the first notice of appeal was filed at the High Court in Garissa instead of the Court of Appeal registry, violating rule 6(1) of the Election Petition Rules. The second notice of appeal, though electronically filed, was not part of the record and was identical in form and content to the first, thus equally deficient. The Court of Appeal considered its discretionary powers under rule 5 but concluded that allowing a supplementary record would give the appellant an undue advantage. The Supreme Court noted its settled hesitation to interfere with the discretionary jurisdiction of lower courts, citing Teachers Service Commission v KNUT and Daniel Kimani Njihia.

Legal principles established

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  • A notice of appeal filed at the wrong court registry is invalid and cannot be cured.
  • Article 159(2)(d) of the Constitution does not excuse fundamental procedural errors.
  • The Supreme Court has jurisdiction to decide if a notice of appeal is valid.
  • Court of Appeal decisions on its own procedural rules are rarely overturned.
  • An appeal must be based on constitutional issues, not just rule interpretation.

Court orders

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  1. 1.The notice of motion dated August 15, 2023 and filed on even date be and is hereby allowed with costs to the 1st and 2nd respondents.
  2. 2.The petition of appeal dated July 31, 2023 and filed on even date is struck out with costs to the respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 27(1)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 86
  • Constitution of Kenya, 2010Article 87(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 163
  • Court of Appeal (Election Petition) Rules, 2017Rule 4(2)
  • Court of Appeal (Election Petition) Rules, 2017Rule 5
  • Court of Appeal (Election Petition) Rules, 2017Rule 6(1)
  • Court of Appeal (Election Petition) Rules, 2017Rule 6(2)
  • Court of Appeal (Election Petition) Rules, 2017Rule 6(3)
  • Court of Appeal (Election Petition) Rules, 2017Rule 8
  • Court of Appeal (Election Petition) Rules, 2017Rule 19
  • Court of Appeal (Election Petition) Rules, 2017Rule 23
  • Court of Appeal Rules, 2022Section 5(2)(b)
  • Elections (General) Regulations, 2012In general
  • Elections ActSection 85A
  • Supreme Court (General) Practice Directions, 2020In general
  • Supreme Court ActSection 3
  • Supreme Court ActSection 3A
  • Supreme Court ActSection 15A
  • Supreme Court ActSection 21
  • Supreme Court Rules, 2020Rule 28(2)

Cases cited (15)

  • Geoffrey M. Asanyo & 3 others v Attorney General
    Petition 21 of 2015; [2018] KESC 10 (KLR)
  • Musa Cherutich Sirma v Independent Electoral and Boundaries Commission & 2 others
    Petition 13 of 2018; [2019] KESC 64 (KLR)
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    Application 2 of 2011; [2012] KESC 8 (KLR)
  • Apungu Arthur Kibira v Independent Electoral & Boundaries Commission & 3 others
    Petition 29 of 2018; [2019] KESC 62 (KLR)
  • Anuar Loitiptip v Independent Electoral & Boundaries Commission & 2 others
    Petition 18 & 20 of 2018 (Consolidated); [2019] KESC 67 (KLR)
  • Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission & 4 others
    Petition 8 of 2014; [2015] KESC 7 (KLR)
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    Civil Appeal 50 of 1989; [1989] KECA 48 (KLR); [1989] KLR 1
  • Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another
    Petition 3 of 2012; [2012] KESC 9 (KLR)
  • Paul Mungai Kimani & 20 others v Attorney-General & 2 others
    Petition 45 of 2018; [2020] KESC 9 (KLR)
  • Francis Wambugu Mureithi v Owino Paul Ongili Babu & 2 others
    Petition 15 of 2018; [2019] KESC 63 (KLR)
  • Teachers Service Commission v Kenya National Union of Teachers & 3 others
    Application 16 of 2015; [2015] eKLR
  • Daniel Kimani Njihia v Francis Mwangi Kimani & Another
    Civil Application 3 of 2014; [2015] eKLR
  • Law Society of Kenya v Centre for Human Rights and Democracy & 12 others
    Petition 14 of 2013; [2014] KESC 29 (KLR)
  • Lemanken Aramat v Harun Meitamei Lempaka & 2 others
    Petition 5 of 2014; [2014] KESC 21 (KLR)
  • Zebedeo John Opore v Independent Electoral and Boundaries Commission & 2 others
    Petition 32 of 2018; [2018] KESC 5 (KLR)
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. E008 of 2022
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Key timeline

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2022-08-09
Wajir County gubernatorial election held.
2022-09-05
High Court dismisses election petition by Hassan Mohammed Adam.
2022-09-15
Appellant files notice of appeal at Garissa High Court instead of Court of Appeal registry.
2023-03-20
Court of Appeal strikes out notice of appeal and record of appeal for being invalid.
2023-07-31
Appellant files petition of appeal to the Supreme Court.
2023-09-08
Supreme Court delivers ex tempore judgment striking out the appeal.
2023-12-15
Supreme Court releases detailed reasons for its judgment.

Practical implications

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For lawyers

Strict compliance with filing rules

Ensure all notices of appeal are filed at the correct court registry. Filing at a wrong registry, even if convenient, renders the notice invalid. The Supreme Court will not use Article 159 to excuse such errors. Always verify the applicable rules (e.g., Election Petition Rules) and file accordingly. This case reinforces that procedural jurisdiction is a threshold issue.

For businesses

Election disputes require precision

If you are involved in an election petition as a candidate or party, ensure your legal team follows every procedural step exactly. A simple mistake like filing at the wrong court can end your case before it is heard. This judgment shows courts will not overlook such errors, even if they seem minor. Budget for experienced election lawyers.

For individuals

Your appeal must start correctly

If you need to appeal a court decision, the first step—filing a notice of appeal—must be done at the correct court. Filing at the wrong court will likely get your appeal thrown out. You cannot rely on the Constitution to fix this mistake. Always ask your lawyer to confirm the correct registry and rules before filing anything.

Frequently asked questions

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What happens if I file a notice of appeal at the wrong court in Kenya?+

Your notice of appeal will likely be struck out as invalid. The court will not use Article 159 of the Constitution to excuse this error. You must file at the correct court registry as per the applicable rules.

Can the Supreme Court hear an appeal about a notice of appeal in Kenya?+

Yes, the Supreme Court has jurisdiction to hear appeals about the validity of a notice of appeal because it is a jurisdictional issue. This was confirmed in Adam v Jiir & 3 others [2023] KESC 101.

What is Article 159(2)(d) of the Kenyan Constitution?+

Article 159(2)(d) says courts should administer justice without undue regard to procedural technicalities. However, this case clarified that it cannot fix fundamental defects like a missing or invalid notice of appeal.

How long do I have to file an election petition appeal in Kenya?+

Election petition appeals must be heard and determined within six months from the date of filing. Missing this timeline can affect your case. Always act quickly and follow the correct procedures.

Cite this brief

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Cite this brief

Caselaw, "Adam v Jiir & 3 others", Case Analysis (2023). Petition E017 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/101/eng@2023-12-08

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