Benard Chege v Clement Kungu Waibara, Charles Mararo Njoroge & Electoral Commission of Kenya (Consolidated with Clement Kungu Waibara v Peter Kamau Njeri, Charles Mararo Njoroge & Electoral Commission of Kenya)
The bottom line
#Kenya's Court of Appeal confirmed that election appeals must be filed within 30 days of the decision, and no court can extend that deadline.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the consolidated applications were incompetent for being filed outside the 30-day period limited by rule 80 of the Court of Appeal Rules
- 2.Whether the notice of appeal and appeal in Civil Appeal No. 142 of 2009, filed about ten months after the High Court ruling, was filed out of time and therefore incompetent
- 3.Whether rule 81 of the Court of Appeal Rules and a Certificate of Delay had the effect of suspending the running of the 30-day statutory limitation period
Key legal issues
#Whether the 30-day statutory period for lodging an election appeal is suspended until the appellant collects the proceedings
No. Time runs from the date of the decision; rule 81 and a Certificate of Delay do not extend the statutory period, and no court has jurisdiction to extend it.
The court reaffirmed its firm prior holdings in Maitha v Said and William Maina Kamanda v Margaret Wanjiru Kariuki: election appeals must be lodged within 30 days of the decision, section 3(1) of the Appellate Jurisdiction Act and rules made under it cannot aid an appellant, and the limitation period is not extendable. The submission relying on rule 81 and the Certificate of Delay was held erroneous.
Whether the consolidated applications were themselves incompetent for being filed outside the 30-day period under rule 80
Yes; counsel for the respondents conceded and the court agreed, striking out the applications.
The appeal was lodged on 6th July 2009 while the applications were filed on 27th November 2009, obviously outside the period limited by rule 80. Counsel for the respondents conceded incompetence, and the court initially struck the applications out with costs to the appellant before later allowing them on the substantive point.
Legal principles established
#- An appeal from an election court must be lodged within 30 days of the decision, and neither the election court nor the Court of Appeal has jurisdiction to extend that statutory limitation period.
- Section 3(1) of the Appellate Jurisdiction Act and the rules made under it are of no assistance to an appellant seeking to extend the 30-day election appeal period.
- Once the statutory right of appeal is extinguished by lapse of the limitation period, the appeal is incompetent and cannot be entertained.
Court orders
#- 1.The two consolidated applications are struck out with costs to the appellant
- 2.Civil Appeal No. 142 of 2009 is struck out with costs to the applicant, Bernard Chege, and the 2nd respondent, Peter Kamau Njeri
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 24 of 2008
- Jurisdiction invoked
- Rules 80, 81 and 42 of the Court of Appeal Rules; section 23(4) of the National Assembly and Presidential Elections Act (Cap 7)
- Consolidated with
- Civil Appeal (Application) No. 142 of 2009
Relief refused
#The 1st respondent's attempt to sustain the appeal on the strength of rule 81 and a Certificate of Delay
The 30-day statutory period for lodging an election appeal runs from the date of the decision and cannot be extended
Costs
We make no order as to costs.
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.
This Court has firmly established that an appeal from the decision of an Election court must be lodged within 30 days from the date of the decision made and that there is no provision giving jurisdiction to either the Election court or this Court to extend the 30 days statutory limitation period.
Clearly, the appellant’s (1st respondent’s) right of appeal to this Court under section 23(4) of the Act (Cap 7) aforesaid having been extinguished this appeal is incompetent and cannot be entertained.
Accordingly, we allow the two applications and order that Civil Appeal No. 142 of 2009 be and is hereby struck out with costs to the applicant, Bernard Chege and the 2nd respondent, Peter Kamau Njeri.
We make no order as to costs.
Issues in the judgment
#Conflicting costs orders within the ruling
Date inconsistency: ruling described as 26th September 2008 in narrative but 26th September 2009 in the heading
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Chege v Clement Kungu Waibara, Charles Mararo Njoroge & Electoral Commission of Kenya (Consolidated with Clement Kungu Waibara v Peter Kamau Njeri, Charles Mararo Njoroge & Electoral Commission of Kenya)", Case Analysis (2010). Civil Application No. 27 of 2009 (Consolidated with Civil Appeal (Application) No. 142 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/469/eng@2010-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.