Joseph Amisi Omukanda v Independent Electoral and Boundaries Commission of Kenya & 2 others
The bottom line
#You cannot switch appeal routes after losing a certification bid; seek review instead.
What this practically means
#The Supreme Court dismissed an application for extension of time to appeal an election case. The applicant had first asked the Court of Appeal for certification to appeal on grounds of general public importance, but was denied. Instead of seeking review of that denial at the Supreme Court, he tried to file a fresh appeal out of time under a different constitutional provision. The Court ruled this was an afterthought and not allowed. The intended appeal was terminated, and the applicant must pay costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court should grant an extension of time to file the intended appeal on the basis that the said appeal raises issues of interpretation and/or application of the Constitution
Key legal issues
#Whether an extension of time should be granted to file an appeal under Article 163(4)(a) when the applicant had previously sought certification under Article 163(4)(b) and been denied.
The application for extension of time is disallowed because the applicant, having elected to seek certification under Article 163(4)(b) and been denied, cannot now approach the Supreme Court directly under Article 163(4)(a) out of time; the proper remedy was to seek review under Article 163(5).
The applicant initially sought certification from the Court of Appeal under Article 163(4)(b), acknowledging that the appeal did not raise constitutional interpretation issues. The Court of Appeal dismissed that application. The applicant then sought to file a composite appeal under both Article 163(4)(a) and (b) out of time. The Supreme Court held that this was an afterthought and not justified. The only proper course after denial of certification was to seek review under Article 163(5), not to belatedly invoke Article 163(4)(a). The court found no merit in the application and terminated the intended appeal.
Legal principles established
#- If you seek certification under Article 163(4)(b) and are denied, you cannot later file an appeal under Article 163(4)(a) out of time.
- The only remedy after denial of certification is to seek review by the Supreme Court under Article 163(5).
- A belated attempt to switch appeal routes after losing a certification bid is an afterthought and lacks merit.
- Extension of time will not be granted to revive an appeal when the proper procedural path was not followed.
- Costs follow the event; the losing party in such procedural applications bears the costs.
Court orders
#- 1.The application for extension of time is hereby disallowed, with the consequence that the intended appeal is terminated.
- 2.The costs of this application are to be borne by the Applicant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Kisumu
- Civil Application No. 14 of 2014 (UR 5/2014)
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution; Rule 33 of the Supreme Court Rules, 2012; Section 15(2) of the Supreme Court Act
Relief refused
#Extension of time to lodge the record of appeal against the Judgment and Order of the Court of Appeal at Kisumu, in Civil Appeal No.45 of 2013 dated 14th March, 2014
The applicant had elected to seek certification under Article 163(4)(b) and the application was dismissed; the only option was to seek review under Article 163(5), not to approach this Court directly under Article 163(4)(a) out of time.
Costs
The costs of this application are to be borne by the Applicant.
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.
The application for extension of time is hereby disallowed, with the consequence that the intended appeal is terminated.
having elected to seek certification from the Court of Appeal on the basis of Article 163(4) (b) of the Constitution, and the application having been dismissed, the only option available to the applicant was to seek a review of the Court of Appeal's decision by this Court, on the basis of Article 163 (5) of the Constitution, as indicated in Sum Model.
This application is, in our view, an afterthought, and is not founded on merit.
Key timeline
#Practical implications
#Choose appeal route carefully
When advising clients on Supreme Court appeals from election petitions, ensure you elect the correct constitutional route upfront. If you seek certification under Article 163(4)(b) and lose, do not attempt to file a fresh appeal under Article 163(4)(a) out of time. Instead, immediately file a review application under Article 163(5) within the prescribed period. This case reinforces that procedural afterthoughts will be rejected.
Follow correct legal procedures
While this case involves election law, the principle applies broadly: if you lose a procedural step in litigation, you cannot switch to a different legal path after the deadline. Ensure your legal team maps out the correct appeal or review route from the start. Delays or wrong choices can terminate your case entirely, as happened here, and you may be liable for costs.
One chance per legal route
If you are involved in a court case and lose, you must choose the right appeal option immediately. You cannot try one route, fail, and then try a different one later. In this case, the applicant lost his chance to appeal because he tried a second route after the first failed. Always ask your lawyer which path is correct and stick to it, or you may lose your case entirely.
Frequently asked questions
#What happens if my appeal certification is denied in Kenya?+
If the Court of Appeal denies certification to appeal to the Supreme Court on grounds of general public importance, you cannot file a fresh appeal under a different provision. Instead, you must seek review of that denial directly from the Supreme Court under Article 163(5) of the Constitution.
Can I extend time to appeal to the Supreme Court in Kenya after losing a certification bid?+
No, not if you previously sought certification under Article 163(4)(b) and were denied. The Supreme Court will treat a later application for extension of time to appeal under Article 163(4)(a) as an afterthought. Your only remedy is to seek review of the denial under Article 163(5).
What is Article 163(4)(a) vs 163(4)(b) in Kenya?+
Article 163(4)(a) allows appeals to the Supreme Court as of right in cases involving interpretation or application of the Constitution. Article 163(4)(b) allows appeals with certification from the Court of Appeal that the matter is of general public importance. You cannot use both routes interchangeably after one fails.
How do I appeal an election petition to the Supreme Court in Kenya?+
You must first identify the correct constitutional basis. If your case involves constitutional interpretation, you can appeal directly under Article 163(4)(a). Otherwise, you need certification from the Court of Appeal under Article 163(4)(b). If certification is denied, seek review under Article 163(5) promptly.
Cite this brief
#Cite this brief
Caselaw, "Joseph Amisi Omukanda v Independent Electoral and Boundaries Commission of Kenya & 2 others", Case Analysis (2015). Civil Application 32 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/10/eng@2015-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.