Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtPartially AllowedPetition 10 of 2013

Joho & another v Shahbal & 2 others

Supreme Court of Kenya
4 February 2014
Kalpana RawalKalpana RawalPhilip Kiptoo TunoiP. K. TunoiMohammed Khadhar IbrahimMohammed K. IbrahimJackton Boma OjwangJ. B. OjwangNjoki Susanna NdunguN. Ndungu
13,064 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~52 min to read original · ~4 min brief

The bottom line

#

Election petition deadline starts when Form 38 is issued, not when results are gazetted.

What this practically means

#

The Supreme Court has ruled that the 28-day deadline to file an election petition begins when the returning officer issues the winner a certificate in Form 38, not when the results are later published in the Kenya Gazette. This means the clock starts ticking immediately after the official declaration at the constituency level, giving petitioners a clear and immediate starting point. The court found that a section of the Elections Act requiring gazettement was unconstitutional because it conflicted with the Constitution.

Executive summary

#
This appeal arose from a preliminary objection in a gubernatorial election petition for Mombasa County. The appellants (the Governor and Deputy Governor) argued that the petition was filed 34 days after the declaration of results, outside the 28-day limit under Article 87(2) of the Constitution. They contended that section 76(1)(a) of the Elections Act, which pegged the 28-day period to publication of results in the Gazette, was inconsistent with the Constitution. The High Court agreed that section 76(1)(a) was inconsistent but declined to strike out the petition, holding the provision was prima facie lawful until declared invalid. The Court of Appeal dismissed the appeal and nullified the High Court's declaration of inconsistency. The Supreme Court first affirmed its jurisdiction under Article 163(4)(a), holding that the appeal raised a cardinal issue of constitutional interpretation that had been conclusively determined by the lower courts. On the merits, the Court conducted a detailed analysis of the electoral process under the Constitution, the Elections Act, and the Elections (General) Regulations, 2012. It held that 'declaration of election results' under Article 87(2) occurs at multiple stages, culminating in the issuance of the certificate in Form 38 to the winner by the returning officer. This certificate terminates the returning officer's mandate and shifts jurisdiction to the election court. The Gazette notice under regulation 87(4)(b) is merely a publication for public information, not the declaration itself. Consequently, the Court declared section 76(1)(a) of the Elections Act inconsistent with Article 87(2) of the Constitution and void to that extent. The appeal was allowed, the cross-appeal on costs was dismissed, and each party was ordered to bear its own costs.

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 this appeal.
  2. 2.Whether section 76(1)(a) of the Elections Act is ultra-vires article 87(2) of the Constitution.

Key legal issues

#
01

Whether the Supreme Court has jurisdiction to hear an appeal from an interlocutory ruling in an election petition under Article 163(4)(a) of the Constitution.

Holding

The Supreme Court has jurisdiction because the appeal raises a cardinal issue of constitutional interpretation and application, namely the consistency of a statutory provision with the Constitution, which was conclusively determined by the High Court and appealed to the Court of Appeal.

Reasoning

The Court distinguished the case from Benjamin Ogunyo Andama v Benjamin Andola Andali, noting that the issue here was a pure question of constitutional interpretation, not an ordinary interlocutory matter. The High Court had exercised its jurisdiction under Article 165(3)(d)(i) to determine the constitutionality of section 76(1)(a) of the Elections Act. The Court held that the appeal fell within Article 163(4)(a) as it involved the interpretation and application of the Constitution, and the matter had progressed through the normal appellate mechanism. The Court emphasized its constitutional mandate to settle legal uncertainties and protect the Constitution.

p. 15
02

Whether section 76(1)(a) of the Elections Act, which requires an election petition to be filed within 28 days after publication of results in the Gazette, is inconsistent with Article 87(2) of the Constitution, which requires filing within 28 days after the declaration of election results by the IEBC.

Holding

Section 76(1)(a) is inconsistent with Article 87(2) and is void to the extent of that inconsistency. The declaration of election results under Article 87(2) occurs upon the issuance of the certificate in Form 38 by the returning officer, not upon publication in the Gazette.

Reasoning

The Court conducted a detailed analysis of the electoral process under the Constitution, the Elections Act, and the Elections (General) Regulations, 2012. It found that 'declaration' occurs at multiple stages (polling station, constituency, county), culminating in the issuance of Form 38 to the winner. This certificate terminates the returning officer's mandate and shifts jurisdiction to the election court. The Gazette notice under regulation 87(4)(b) is merely a publication of information for public access, not the declaration itself. The Court held that the Court of Appeal erred by elevating the statutory provision over the Constitution, contrary to Article 2.

p. 25

Legal principles established

#
  • The declaration of election results under Article 87(2) occurs upon issuance of Form 38, not upon Gazette publication.
  • Section 76(1)(a) of the Elections Act is unconstitutional to the extent it ties the 28-day period to Gazette publication.
  • The Supreme Court has jurisdiction to hear appeals on constitutional interpretation even in interlocutory election matters.
  • The Gazette notice is merely a public information tool, not the legal declaration of results.
  • A statutory provision that contradicts the Constitution is void to the extent of the inconsistency.

Court orders

#
  1. 1.The Appeal is allowed, with the holding that section 76(1)(a) of the Elections Act, 2011 is inconsistent with article 87(2) of the Constitution of Kenya, 2010 and, to that extent, a nullity.
  2. 2.The cross-appeal to the extent of the grounds raised in respect of costs awarded by the Court of Appeal, is dismissed.
  3. 3.For this Appeal, parties shall bear their own costs, respectively.

The bench

#

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

Kalpana Rawal
majority
Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Njoki Susanna Ndungu
N. NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Civil Appeal No 12 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

#

The cross-appeal by the 2nd and 3rd Respondents on the issue of costs awarded by the Court of Appeal

The Respondents have failed to comply with the jurisdictional requirements of article 163(4)(b) of the Constitution.

p. 30

Costs

For this Appeal, parties shall bear their own costs, respectively.

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 hold that the certificate in Form 38 comprises the declaration of election results. This declaration sets in motion the time-frame within which to lodge an election petition, and it is hereby so held.
p. 25 Declaration of election results
Consequently, the provision of section 76(1)(a) of the Elections Act is inconsistent with the provisions of article 87(2) of the Constitution, as elaborated hereinbefore, and is hereby declared unconstitutional to that extent.
p. 25 Constitutional inconsistency
The Appeal is allowed, with the holding that section 76(l)(a) of the Elections Act, 2011 is inconsistent with article 87(2) of the Constitution of Kenya, 2010 and, to that extent, a nullity.
p. 30 Final orders
For this Appeal, parties shall bear their own costs, respectively.
p. 30 Costs order
The cross-appeal to the extent of the grounds raised in respect of costs awarded by the Court of Appeal, is dismissed.
p. 30 Cross-appeal dismissed

Key timeline

#
2017-08-08
Mombasa gubernatorial election held.
2017-08-11
Returning officer issues Form 38 to Ali Hassan Joho, declaring him winner.
2017-09-14
Suleiman Shahbal files election petition 34 days after Form 38 issuance.
2017-09-28
High Court declares Section 76(1)(a) inconsistent with Constitution but does not strike out petition.
2018-07-27
Court of Appeal dismisses appeal and nullifies High Court's declaration.
2025-02-21
Supreme Court allows appeal, declares Section 76(1)(a) unconstitutional, and sets binding precedent.

Practical implications

#
For lawyers

Count from Form 38, not Gazette

When advising election petitioners, calculate the 28-day deadline from the date the returning officer issues Form 38 to the winner. Do not wait for Gazette publication. This ruling overrides Section 76(1)(a) of the Elections Act, so any petition filed after 28 days from Form 38 but within 28 days of Gazette publication will be time-barred. Update your filing checklists immediately.

For businesses

Election timelines affect business stability

If your business operates in a sector affected by election disputes (e.g., county contracts, permits), note that legal challenges to election results now start earlier—from Form 38 issuance. This means election-related uncertainty may resolve faster, as petitions must be filed sooner. Monitor the date of Form 38 issuance in your county to anticipate potential disruptions.

For individuals

Know your petition deadline

If you want to challenge an election result in Kenya, you have 28 days from the day the returning officer hands the winner the official certificate (Form 38), not from when results appear in the Kenya Gazette. Missing this deadline means your petition will be dismissed. Check the date on Form 38—that is your starting point.

Frequently asked questions

#
What is the deadline to file an election petition in Kenya after this ruling?+

You must file an election petition within 28 days from the date the returning officer issues Form 38 to the winner. The Kenya Gazette publication date no longer matters for counting this deadline.

Is Section 76(1)(a) of the Elections Act still valid in Kenya?+

No. The Supreme Court declared Section 76(1)(a) unconstitutional because it required filing within 28 days of Gazette publication, which contradicts the Constitution's 28-day period from the declaration of results (Form 38). That section is now void.

What is Form 38 in Kenyan elections?+

Form 38 is the official certificate issued by the returning officer to the winner of a gubernatorial or other county election. It marks the final declaration of results and starts the 28-day clock for filing an election petition.

Can the Supreme Court hear an election petition appeal before the final judgment in Kenya?+

Yes, if the appeal raises a pure question of constitutional interpretation that was conclusively determined by lower courts. This ruling confirms the Supreme Court's jurisdiction in such interlocutory matters.

Later judgments citing this (25)

#

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, "Joho & another v Shahbal & 2 others", Case Analysis (2014). Petition 10 of 2013. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/34/eng@2014-02-04

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