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Supreme CourtDismissedPetition 29 of 2018

Apungu Arthur Kibira v Independent Electoral & Boundaries Commission & 3 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
6,955 words in judgment
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The bottom line

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Appeal dismissed: Court rules must be followed; Article 159 does not excuse missed deadlines.

What this practically means

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A candidate who lost the 2017 Luanda election tried to appeal. His lawyer filed the appeal papers at the wrong court registry. The Court of Appeal struck out the case because it was filed late and in the wrong place. The candidate argued that the Constitution's Article 159, which encourages courts to focus on substance over procedure, should save his case. The Supreme Court disagreed. It said Article 159 cannot give a court the power to ignore clear legal deadlines. The appeal was dismissed, and the election result stands.

Executive summary

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The appellant, a candidate in the 2017 Luanda Constituency parliamentary election, challenged the election of the 3rd respondent. The High Court (Election Court) upheld the election. The appellant filed a notice of appeal at the High Court registry in Kakamega instead of the Court of Appeal registry in Kisumu, as required by the Court of Appeal (Election Petition) Rules, 2017. The Court of Appeal, by a majority (Waki & Sichale, JJA; Otieno-Odek, JA dissenting), struck out the notice of appeal, holding it was a nullity for non-compliance with rule 6 and that the court lacked jurisdiction to extend time as the statutory timelines under section 85A of the Elections Act had lapsed. The appellant appealed to the Supreme Court under Article 163(4)(a), arguing that the Court of Appeal violated his rights to a fair hearing and access to justice, and that the procedural defect was curable under Article 159(2)(d) of the Constitution. The Supreme Court first affirmed its jurisdiction, finding that the appeal involved the interpretation of Article 159(2)(d). On the merits, the Court held that the Court of Appeal had properly exercised its discretion. The appellant failed to show that the decision was based on a whim, was prejudicial, or was capricious. The Supreme Court reiterated that Article 159(2)(d) cannot grant a court jurisdiction denied by statute, and that the Court of Appeal had no power to extend time beyond the statutory limit. The appeal was dismissed, with each party bearing its own costs in the Supreme Court, while the costs orders in the lower courts were upheld.

Questions the Court framed

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

  1. 1.Whether this court has the requisite jurisdiction to hear and determine the instant Petition brought under article 163(4)(a) of the Constitution;
  2. 2.If the answer to (a) is in the affirmative, whether the Court of Appeal properly exercised its discretion in dismissing the appeal by striking out the Notice of Appeal and record of appeal filed by the appellant; and
  3. 3.Reliefs available to the parties.

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal challenging the Court of Appeal's exercise of discretion in striking out a notice of appeal for non-compliance with procedural rules.

Holding

The Supreme Court has jurisdiction because the appeal involves the interpretation of Article 159(2)(d) of the Constitution, which was central to the Court of Appeal's decision.

Reasoning

The Court found that the Court of Appeal's majority decision turned on the applicability of Article 159(2)(d) as read with rule 5 of the Court of Appeal Rules, 2017. The appellant sought a clarification of the interpretation of Article 159(2)(d) as it relates to the exercise of the Court of Appeal's discretion. Since a constitutional provision was in issue, the appeal fell within Article 163(4)(a). The Court distinguished this from a bare challenge to the exercise of discretion, noting that the constitutional interpretation element was present.

p. 13
02

Whether the Court of Appeal properly exercised its discretion in striking out the notice of appeal for being filed at the wrong registry and not in conformity with rule 6 of the Court of Appeal (Election Petition) Rules, 2017.

Holding

The Court of Appeal properly exercised its discretion. The appellant failed to show that the decision was based on a whim, was prejudicial, or was capricious.

Reasoning

The Supreme Court reviewed the Court of Appeal's reasoning. The appellate court had considered the notice of appeal against rules 5 and 6, found it did not meet the prerequisites, and concluded it had no jurisdiction to extend time because the statutory timelines under section 85A of the Elections Act had lapsed. The Supreme Court held that Article 159(2)(d) cannot grant a court jurisdiction denied by statute. The appellant did not demonstrate an error of law or principle, or that the court considered irrelevant matters or failed to consider relevant ones.

p. 15

Legal principles established

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  • Article 159(2)(d) of the Constitution does not grant a court jurisdiction that is denied by a statute.
  • In an appeal against a discretionary decision, the appellant must show the decision was based on a whim, was prejudicial, or was capricious.
  • The Supreme Court will only interfere with another court's discretion if there is a clear misapplication of the law.
  • Procedural rules in election petitions must be strictly followed; statutory time limits cannot be extended even under Article 159.
  • A notice of appeal must be filed at the correct registry as per the applicable Court of Appeal (Election Petition) Rules.

Court orders

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  1. 1.The appellant's petition is hereby dismissed.
  2. 2.Each party shall bear its costs of the appeal.
  3. 3.The orders allowing costs to the respondents both at the High Court and Court of Appeal are hereby upheld.

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 Kisumu
Election Appeal No 11 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Setting aside the Court of Appeal decision striking out the notice of appeal

The Court of Appeal properly exercised its discretion; the appellant did not show the decision was based on a whim, was prejudicial or capricious.

p. 15

Costs

Each party shall bear its costs of the appeal. The orders allowing costs to the respondents both at the High Court and Court of Appeal are hereby upheld.

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 appellant's petition is hereby dismissed.
p. 15 Final Order
Each party shall bear its costs of the appeal.
p. 16 Costs Order
article 159(2)(d) of the Constitution was also never meant to grant a court jurisdiction denied by a Statute
p. 15 Constitutional Interpretation
in an appeal from a decision based on an exercise of discretionary powers, an appellant has to show that the decision was based on a whim, was prejudicial or was capricious.
p. 14 Standard of Review for Discretionary Decisions
the court may only interfere with the exercise of discretion by another court where there is plain and clear misapplication of the law.
p. 14 Limits of Supreme Court's Interference

Key timeline

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2017 General Election
Oduor loses the Luanda Constituency parliamentary election to Oduya.
After the election
High Court dismisses Oduor's election petition, upholding Oduya's election.
2019
Supreme Court dismisses Oduor's appeal, affirming the Court of Appeal's decision to strike out the notice of appeal for non-compliance with procedural rules.

Practical implications

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For lawyers

Strict compliance with procedural rules

Election petition appeals must adhere to the Court of Appeal (Election Petition) Rules 2017 regarding filing at the correct registry. The Supreme Court clarified that Article 159 does not excuse non-compliance with statutory time limits. When advising clients, emphasize that procedural errors can be fatal even if the mistake seems minor. Prepare to show that any discretionary decision appealed against was arbitrary or unreasonable.

For businesses

Election outcomes require procedural precision

Businesses involved in election-related litigation or supporting candidates should ensure legal teams strictly follow court rules. Filing at the wrong registry or missing deadlines can end a case regardless of merit. The Supreme Court's decision reinforces that the Constitution's 'justice without technicalities' principle does not override clear statutory timelines. Engage experienced election petition lawyers.

For individuals

Your vote counts—but only if rules are followed

If you are a candidate challenging an election result, you must follow every court rule exactly. Filing papers at the wrong office or missing a deadline can kill your case. The Supreme Court said that even the Constitution's promise of substantive justice cannot save you if you ignore procedural rules. Hire a lawyer who knows election petition procedures inside out.

Frequently asked questions

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Can I file an election petition appeal at any court registry in Kenya?+

No. The Court of Appeal (Election Petition) Rules require you to file at the Court of Appeal registry in the region where the election occurred. Filing at the High Court registry is wrong and can lead to your appeal being struck out.

Does Article 159 of the Kenyan Constitution allow me to ignore court deadlines?+

No. Article 159(2)(d) encourages courts to focus on substance over procedure, but it cannot override statutory time limits. If you miss a deadline set by the Elections Act, the court has no power to extend it, even under Article 159.

What happens if I file my election appeal at the wrong court registry in Kenya?+

Your appeal may be struck out as a nullity. The Court of Appeal has no discretion to extend time if the statutory period has lapsed. The Supreme Court confirmed this in the Oduor case.

Can the Supreme Court of Kenya hear an appeal about a Court of Appeal's discretionary decision?+

Yes, if the appeal involves interpretation of the Constitution. In the Oduor case, the Supreme Court found jurisdiction because Article 159 was central to the Court of Appeal's decision. But if it is just a challenge to discretion, the Supreme Court will only interfere if there was a clear misapplication of law.

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, "Apungu Arthur Kibira v Independent Electoral & Boundaries Commission & 3 others", Case Analysis (2019). Petition 29 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/62/eng@2019-01-18

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