Farah v Independent Electoral and Boundaries Commission (IEBC) & 2 others
The bottom line
#You cannot appeal to the Supreme Court while a certification request is still pending at the Court of Appeal.
What this practically means
#If you ask the Court of Appeal to certify your case as one of general public importance, you must wait for that decision before going to the Supreme Court. Filing an appeal directly to the Supreme Court while the certification request is still pending will be rejected. The Deputy Registrar has the power to refuse such filings. The Supreme Court confirmed this rule, dismissing an application that tried to bypass it.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the Deputy Registrar subvert the applicant’s right to a fair hearing by declining to admit the petition filed under article 163(4)(a) of the Constitution pending the disposal of Civil Application No Sup. E006 of 2023 which sought certification at the Court of Appeal under article 163(4)(b) of the Constitution?
Key legal issues
#Whether the Deputy Registrar erred in declining to admit a petition of appeal under article 163(4)(a) while a certification application under article 163(4)(b) was pending before the Court of Appeal.
The Deputy Registrar did not err; the applicant must first have the certification application at the Court of Appeal disposed of before the Supreme Court can entertain the petition.
The court held that the Deputy Registrar's role under rule 6(1) of the Supreme Court Rules includes declining pleadings not in accordance with the rules. Since the applicant had filed a certification application at the Court of Appeal, the principle from Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others applies: the Supreme Court's intervention is not in issue until the Court of Appeal's task on certification is complete. The applicant had not shown that the certification application was withdrawn or determined, so the Deputy Registrar correctly directed that the petition could not proceed.
Legal principles established
#- A party must await the Court of Appeal's determination on a certification application before filing an appeal in the Supreme Court under Article 163(4)(a).
- The Deputy Registrar has authority under Rule 6(1) of the Supreme Court Rules to reject pleadings that do not comply with procedural rules.
- Filing an appeal under Article 163(4)(a) does not automatically abandon a pending certification application under Article 163(4)(b).
- The Supreme Court's jurisdiction is not triggered until the Court of Appeal completes its certification task.
- The applicant bears the burden of showing that a certification application has been withdrawn or determined before proceeding to the Supreme Court.
Court orders
#- 1.The notice of motion dated August 30, 2023 is hereby dismissed.
- 2.The applicant shall bear the costs of this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Supreme Court of Kenya (Deputy Registrar)
- Jurisdiction invoked
- Articles 20(3)(a) and (b), 21(1), 27(1), 50(1) and 163 of the Constitution; Rules 6(2) and (3), 31 and 32 of the Supreme Court Rules, 2020; Sections 31, 32 and 33 of the Supreme Court (General) Practice Directions, 2020
Relief refused
#Review and discharge of the Deputy Registrar's decision of August 29, 2023
The applicant had moved the Court of Appeal for certification and had not shown that the application was withdrawn or determined; the Deputy Registrar correctly directed that the Court of Appeal should first dispose of the certification application.
Directions for disposal and hearing of the petition of appeal dated August 18, 2023
The petition could not be admitted until the certification application at the Court of Appeal was resolved.
Costs
The applicant shall bear the costs of this application.
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.
It is clear to us that a party who moves the appellate court for leave and certification has recognized the relevant cause as one founded on 'matter of general public importance'. Consequently, this court’s intervention is not in issue until that court’s task is complete.
I concur with the Deputy Registrar’s direction that the applicant should first ensure that the application for certification dated July 28, 2023 still pending before the Court of Appeal is disposed of before any other step can be taken in the petition of appeal he seeks to file before this court.
The notice of motion dated August 30, 2023 is hereby dismissed.
The applicant shall bear the costs of this application.
Key timeline
#Practical implications
#Procedural trap for Supreme Court appeals
When advising clients on appeals to the Supreme Court, ensure that any pending certification application at the Court of Appeal is formally withdrawn or determined before filing a direct appeal under Article 163(4)(a). Failure to do so will result in rejection by the Deputy Registrar, wasting time and costs. Always check the status of certification before proceeding.
Certainty in litigation timelines
Businesses involved in electoral or constitutional litigation should note that procedural steps must be followed sequentially. A party cannot jump the queue by filing a Supreme Court appeal while a certification application is pending. This ensures predictable case management and avoids unnecessary delays and expenses.
Know your appeal route
If you are a candidate or voter challenging an election result, understand that you must first get certification from the Court of Appeal if your case is not automatically appealable. Filing directly to the Supreme Court while certification is pending will be rejected. Always consult a lawyer to follow the correct procedure.
Frequently asked questions
#Can I appeal directly to the Supreme Court in Kenya if I have a pending certification application at the Court of Appeal?+
No. The Supreme Court has ruled that you must wait for the Court of Appeal to decide on certification first. Filing both simultaneously will lead to rejection by the Deputy Registrar.
What happens if I file a Supreme Court appeal while my certification request is still pending in Kenya?+
The Deputy Registrar will decline to admit your appeal. You must first have the certification application withdrawn or determined by the Court of Appeal before proceeding.
Does filing a Supreme Court appeal automatically cancel my certification application in Kenya?+
No. The Supreme Court held that filing an appeal does not automatically abandon a pending certification application. You must formally withdraw it from the Court of Appeal.
What is the role of the Deputy Registrar in Supreme Court appeals in Kenya?+
The Deputy Registrar has power under Rule 6(1) of the Supreme Court Rules to reject pleadings that do not comply with the rules, including appeals filed while a certification application is pending.
Cite this brief
#Cite this brief
Caselaw, "Farah v Independent Electoral and Boundaries Commission (IEBC) & 2 others", Case Analysis (2023). Petition (Application) E025 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/71/eng@2023-09-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.