Matiba v Moi (Civil Application 241 of 1993) [1993] KECA 1 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that decisions about whether an election petition is valid can be appealed, even though decisions about the election's outcome cannot.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies to the Court of Appeal against a decision of the election court on the competency/validity of an election petition
- 2.Whether section 44(5) of the Constitution, as amended to include interlocutory decisions, deprives the Court of Appeal of jurisdiction over such an appeal
- 3.Whether a decision on compliance with rule 4(3) of the Election Petition Rules is a determination of a question under section 44(4) of the Constitution and therefore non-appealable
Key legal issues
#Scope of the non-appealability bar in section 44(5) of the Constitution
The bar applies only to determinations of questions affecting the validity of an election; the amended phrase 'whether the decision be interlocutory or final' extended the bar only to interlocutory decisions on such questions, not to matters outside section 44(1).
Section 44(1) confines the High Court's election jurisdiction to whether a person was validly elected or a seat vacant. Any question affecting validity arises from acts or omissions before or during the election up to declaration of the result. A ruling on the competency of a petition, dealing with an act of the petitioner after the result, falls outside that scope and remains appealable under the ordinary appellate provisions.
Whether the validity of an election petition is a question under section 44
It is not; section 44(1) lists exhaustively the questions the election court may determine, and the validity of the petition itself is not among them.
Neither the National Assembly and Presidential Elections Act nor the Rules made under it can add a question to those set out in the Constitution; any purported addition would be void to the extent of the inconsistency. Without a valid petition the election court would have no jurisdiction to proceed at all, so a ruling on petition validity could not sensibly be made final and non-appealable.
Dual jurisdiction of the High Court as election court and ordinary court
The High Court as election court exercises an additional jurisdiction under section 44(1) but retains its unlimited original jurisdiction under section 64(1); on issues outside section 44(1) it sheds the election-court role and its decisions are appealable.
The 'Election Court' is a statutory label for the High Court exercising jurisdiction conferred by section 44(1) of the Constitution. When confronted with an issue outside that section, such as competency of a petition, the court assumes its normal role under section 64(1), and because no written law forbids an appeal on such an issue, an appeal lies to the Court of Appeal.
Effect of the 1984 amendment to section 44(5) on earlier authorities
Mudavadi v Kibisu and Karanja v Magugu, which allowed appeals on interlocutory election-court matters, are no longer good law after the insertion of 'whether the decision be interlocutory or final', though distinguishable on the present facts.
Those decisions preceded the amendment (Act No 7 of 1984). The amendment restricted whatever appellate jurisdiction previously existed, so the earlier authorities and the Malaysian persuasive authority in Devan Nair are distinguishable on facts and law and no longer persuasive in Kenya on interlocutory questions within section 44.
Legal principles established
#- Section 44(5) of the Constitution bars appeals only from determinations of questions affecting the validity of an election; rulings on the competency or validity of the petition itself fall outside section 44(1) and are appealable to the Court of Appeal.
- Subordinate legislation (the Rules) cannot add to or subtract from the questions enumerated in section 44(4) of the Constitution.
- The High Court acting as an election court retains its unlimited original jurisdiction under section 64(1) of the Constitution for matters outside section 44(1).
- An appeal lies from every decision of the High Court to the Court of Appeal unless otherwise expressly provided.
Court orders
#- 1.The notice of motion dated 30th September 1993 seeking to strike out the respondent's notice of appeal is dismissed
- 2.An appeal in this case lies to the Court of Appeal
- 3.Costs of the application awarded to the respondent against the applicant
- 4.The Electoral Commission awarded the day's attendance costs only
- 5.Request for two counsel's costs refused
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Held that section 44(5) of the Constitution bars appeals only from determinations affecting the validity of an election; a ruling on the competency of a petition falls outside section 44(1), so the High Court sheds its election-court role and appeals lie to the Court of Appeal. The application to strike out the notice of appeal was dismissed with costs to the respondent and attendance costs to the Electoral Commission; two-counsel costs refused.
As both my lords Muli, JA and Omolo, JA agree with my aforesaid decision the order of this Court is that an appeal in this case lies to the Court of Appealp. 7
Wrote the judgment
Agreed the High Court has only limited election jurisdiction under sections 10 and 44; the validity/form of a petition is a procedural matter outside that scope, decided in the High Court's unlimited jurisdiction, and is appealable. Declared Mudavadi, Karanja and the Malaysian Devan Nair authority no longer good law after the 1984 amendment to section 44(5); dismissed the motion with costs as proposed by Cockar JA.
The earlier authorities in Mudavadi and Magugu's authorities are no longer good law and are clearly distinguishable on facts and law.p. 12
Wrote the judgment
Held section 44(1) covers only two issues (and three more via section 10(2)); the validity of the petition itself is not among them, so section 44(5) does not apply and the ordinary appeal provisions apply. Neither the Act nor the Rules can add questions to the Constitution. Would have dismissed the application with costs to the respondent but declined to certify for two counsel.
Once it is held, as I do, that the validity of an election petition is not one of the matters covered under section 44(1) of the Constitution, then section 44(5) does not applyp. 16
- On appeal from
- High Court of Kenya (Election Court)
- Election Petition No 27 of 1993
- Jurisdiction invoked
- Sections 10 and 44(5) of the Constitution of Kenya; rules 42(1) and 80 of the Court of Appeal Rules
Relief refused
#Costs for two counsel
The court was not persuaded the matter was of sufficient legal complexity to justify certification for two counsel
Striking out of the notice of appeal
The decision of the election court on the validity of the petition was not a determination of a question under section 44 of the Constitution and was therefore appealable
Costs
Costs of the application awarded to the respondent against the applicant; the Electoral Commission, served as an interested party under rule 76 of the Court of Appeal Rules, entitled to the day's attendance costs only; two counsel's costs refused.
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 order of this Court is that an appeal in this case lies to the Court of Appeal and, therefore, the notice of motion filed by the applicant on 5th October, 1993, to strike out the notice of appeal is now dismissed.
In the event, I award costs of the application to the respondent and the day's attendance costs to the Electoral Commission against the applicant. Orders accordingly.
the determination of the validity of an election and the determination of the competency of a petition are basically two entirely difierent matters.
Once it is held, as I do, that the validity of an election petition is not one of the matters covered under section 44(1) of the Constitution, then section 44(5) does not apply and the ordinary appeal provisions, particularly section 66 of the Civil Procedure Act, apply and there is a right of appeal to this court.
By no stretch of imagination can any rule be deemed to be capable of adding to or subtracting from s 44 (4) of the Constitution.
Issues in the judgment
#The judgment is internally inconsistent in its treatment of Mudavadi and Karanja: Cockar JA holds those authorities remain good on matters outside section 44 and follows them, while Muli JA declares them 'no longer good law' after the 1984 amendment, and Omolo JA says section 44(5) 'has really not succeeded in totally depriving this Court of all jurisdiction'. The divergence in reasoning does not affect the unanimous outcome.
The citation for Mudavadi v Kibisu is given inconsistently as [1970] EA 585 in one judgment and [1970] EA 583 in another, and Omolo JA elsewhere refers to '[1978]'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matiba v Moi (Civil Application 241 of 1993) [1993] KECA 1 (KLR)", Case Analysis (1993). Civil Application (Nai) No 46 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1993/1/eng@1993-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.