William Maina Kamanda v Margaret Wanjiru Kariuki, Manasseh Mugasia & Electoral Commission of Kenya
The bottom line
#Kenya's Court of Appeal struck out an election appeal filed one day late, confirming that the 30-day election appeal deadline cannot be extended.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Civil Appeal No. 221 of 2008 was filed out of time under Section 23(4) of the National Assembly and Presidential Elections Act
- 2.Whether the appeal was in fact lodged on 22nd October 2008 rather than the endorsed date of 23rd October 2008
- 3.Whether the registrar's decision to refuse partial filing on 22nd October 2008 should be reversed or the appeal deemed filed in time
- 4.Whether the second applicant's application of 31st October 2008 was competent under Rule 14(4)
Key legal issues
#Computation of the 30-day election appeal period
Excluding the day of the ruling under Section 57(a) of the Interpretation and General Clauses Act, the 30 days expired on 22nd October 2008; lodgment on 23rd October 2008 was one day out of time.
Section 23(4) requires appeals from election courts to be filed within thirty days of the decision. Section 57(a) of the Interpretation and General Clauses Act excludes the day on which the decision was delivered. Counsel for the second applicant conceded the computation, contending only that lodgment actually occurred on 22nd October 2008.
Date of institution of the appeal versus the registrar's endorsement
The registrar's endorsement of 23rd October 2008 on the record and memorandum, the serial number assigned, and fees receipts dated 23rd October 2008 raise a rebuttable presumption that the appeal was instituted on 23rd October 2008.
Rule 81(1) requires lodgment of the memorandum and record of appeal in quadruplicate plus fees and security to institute an appeal. The Deputy Registrar endorsed 23rd October 2008 on both documents, registered the appeal, assigned a serial number and issued receipts bearing that date. The second applicant's contrary evidence was hearsay from a clerk who swore no affidavit and was contradicted by the Deputy Registrar's investigation.
Reversal of the registrar's ministerial decision
The registrar's decision whether to accept documents is ministerial; a Judge referred the matter under Rule 14(4) should not interfere unless concrete evidence proves the discretion was wrongly exercised, and reversal should be rare.
The rules give the registrar a discretion to accept or reject documents. Because reversing the registrar's decision would create uncertainty in the computation of time, strong rebuttal evidence is required and reversal should occur only in rare occasions. The second applicant's material did not disprove the Deputy Registrar's account that the records were not presented as her clerk claimed.
Competence of the second applicant's application
The application should have been brought under Rule 14(4) by referral to a Judge; treated as such, it was incompetent as filed outside the seven days without leave.
The registrar's decision is administrative rather than judicial and does not call for determination by the full court. Rule 14(4) requires an application informally at the time of the decision or in writing within seven days. The application of 31st October 2008 was outside that window and no leave to file out of time was sought.
Legal principles established
#- There is no jurisdiction to extend the 30-day statutory period for appealing from an election court under Section 23(4) of the National Assembly and Presidential Elections Act.
- Where the registrar has endorsed the record of appeal and memorandum with a lodgment date, registered the appeal and issued fees receipts bearing that date, there is a rebuttable presumption that the appeal was instituted on that date.
- A registrar's decision to accept or refuse documents is ministerial/administrative; a Judge should not interfere unless concrete evidence proves the discretion was wrongly exercised, and reversal should occur only on strong rebuttal evidence and in rare occasions.
- A party aggrieved by a registrar's refusal to accept a document must pursue the remedy in Rule 14(4) - referral to a Judge informally at the time or in writing within seven days.
Court orders
#- 1.The record of appeal in Civil Appeal No. 221 of 2008 is struck out with costs to the first applicant
- 2.The second application dated 30th October 2008, filed by the second applicant on 31st October 2008, is dismissed with costs to the first applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Kihara J.)
- Election Petition No. 5 of 2008
- Jurisdiction invoked
- Section 23(4) of the National Assembly and Presidential Elections Act; inherent jurisdiction of the Court
Relief refused
#Confirmation that Civil Appeal No. 221 of 2008 was filed within time
The endorsed date of lodgment, fees receipts and registration create a rebuttable presumption that the appeal was instituted on 23rd October 2008, one day late
Extension of time for filing the appeal by one day
No provision in law confers jurisdiction on the Election Court or the Court of Appeal to extend the 30-day statutory limitation period; the prayer was abandoned
Deeming the appeal properly filed
The facts asserting lodgment on 22nd October 2008 were seriously contested and did not disprove the Deputy Registrar's decision; the proper course was referral to a Judge under Rule 14(4)
Costs
Record of appeal struck out with costs to the first applicant; second application dismissed with costs to the respondent (i.e. first 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.
There is no provision in law giving jurisdiction to either the Election Court or this Court to extend the 30 days statutory limitation period (see Maitha vs. Said and Another [1972] EA 181).
there is a rebuttable presumption in our view, that the appeal was instituted at the date and time so endorsed
not only would strong rebuttal evidence be required but also it would only in rare occasions that decision of registrar would be reversed
Accordingly, the record of appeal in Civil Appeal No. 221 of 2008 is struck out with costs to the first applicant.
We further order that the second application dated 30th October, 2008 which bears the same serial number as the first application and filed by the second applicant on 31st October 2008 be and is hereby dismissed with costs to the respondent (i.e. first applicant).
Issues in the judgment
#Date discrepancy: application described as filed 31st October 2008 but final orders refer to it as dated 30th October 2008
Final orders describe the striking-out application as dated 29th October 2009, an apparent typographical error for 2008
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Maina Kamanda v Margaret Wanjiru Kariuki, Manasseh Mugasia & Electoral Commission of Kenya", Case Analysis (2010). Civil Appeal (Application) No. 221 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/499/eng@2010-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.