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Court of AppealDismissedCivil Application No. NAI 14 of 2014 (UR 5/2014)· [2014] KECA 507 (KLR)

Joseph Amisi Omukanda v The Independent Elections & Boundaries Commission & 2 others

Court of Appeal of Kenya
27 June 2014
3,722 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to let an election loser take his case to the Supreme Court, confirming only truly exceptional public-interest cases get certified.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Waki, M'Inoti and Murgor, JJ.A) on an application by Joseph Amisi Omukanda for a certificate to appeal to the Supreme Court against the Court of Appeal's judgment of 14th March 2014 in Kisumu Civil Appeal No. 45 of 2013, which dismissed his election appeal arising from the Navakholo Constituency parliamentary election of 4th March 2013, which he lost by 32 votes. The application was founded on three grounds: interpretation of the Constitution, apprehended miscarriage of justice, and matters of general public importance. The Court declined to engage the miscarriage of justice grounds because section 16(2) of the Supreme Court Act, which purported to confer such jurisdiction, had been declared unconstitutional in Commission on Administrative Justice v Attorney General, a position affirmed by the Supreme Court in Malcolm Bell v Daniel Toroitich Arap Moi, and the applicant abandoned that ground. On constitutional interpretation, the Court held that the issues raised - including the meaning of 'election material' under Article 86(d) - were collateral questions minimally related to the substantive issues determined, and considered them under the general public importance limb. Applying the settled threshold that only exceptional cases raising cardinal issues of law or jurisprudential moment qualify for certification, the Court found the pleadings issue and the treatment of photocopies of Forms 35 raised no jurisprudential moment, that no conflicting Court of Appeal decisions were identified, and that the costs ground was misconceived since Raila Odinga laid down no hard and fast costs rule. The application was dismissed with costs to the respondents.

Key legal issues

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01

Threshold for certification to the Supreme Court under Article 163(4)(b)

Holding

The applicant failed to show an issue transcending the circumstances of the case with a significant bearing on the public interest; alleged conflicts in Court of Appeal decisions do not justify certification as the Court of Appeal has mechanisms to resolve them.

Reasoning

The certification requirement is a filtering process ensuring only appeals with elements of general public importance reach the Supreme Court. The applicant cited no conflicting decisions of the Court of Appeal, and even such conflicts would not warrant certification since the Court of Appeal can align its own decisions. The pleadings rule and the treatment of Forms 35 present no jurisprudential moment.

p. 4
02

Whether the constitutional interpretation grounds qualified for appeal as of right

Holding

The issues on the meaning of 'election material' under Article 86(d) were collateral questions minimally related to the substantive issues determined, so certification under the general public importance limb would be required - and was refused.

Reasoning

The complaint about re-tallying on photocopies of Forms 35 and 36 was a collateral question. The applicant himself obtained the copies from the IEBC and sought re-tallying on their basis. The Court found no substantial point of law with a significant bearing on the public interest in determining what constitutes election materials.

p. 4
03

Miscarriage of justice as a ground of appeal to the Supreme Court

Holding

No jurisdiction exists to appeal to the Supreme Court on grounds of apprehended miscarriage of justice, section 16(2) of the Supreme Court Act having been declared unconstitutional and the Supreme Court having affirmed that position.

Reasoning

Section 16(2) of the Supreme Court Act purported to add to the Supreme Court's jurisdiction but was declared ultra vires the Constitution by the High Court, and the Supreme Court in Malcolm Bell upheld an objection to jurisdiction under that provision as an invocation of a jurisdiction that did not coincide with the Constitution's donation. The applicant abandoned the ground.

p. 3
04

Alleged breach of Article 163(7) by departing from Raila Odinga on costs

Holding

The ground was misconceived; Raila Odinga made a costs order on its own facts and laid down no binding rule that each party must always bear their own costs in election petitions.

Reasoning

The High Court ordered each party to bear their own costs after dismissing the petition; on cross-appeal the Court of Appeal found that order erroneous on the facts and substituted costs capped at Kshs 1,500,000 for the 3rd respondent and Kshs 1,000,000 each for the respondents on the appeal. No precedent was violated.

p. 6

Legal principles established

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  • Certification under Article 163(4)(b) is reserved for exceptional cases raising cardinal issues of law or jurisprudential moment; the Supreme Court is not an additional tier for routine appeals.
  • Issues of interpretation or application of the Constitution that are collateral and minimally related to the substantive issue determined require certification as a matter of general public importance; they do not qualify for appeal as of right.
  • Parties may not found a case on unpleaded matters, save where the issue was raised before the court, addressed by the parties and no party was taken by surprise or prejudiced.
  • Raila Amollo Odinga v IEBC laid down no hard and fast rule that costs in every election petition must be that each party bears their own costs; costs orders remain discretionary on the facts of each case.

Court orders

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  1. 1.The application for certification to appeal to the Supreme Court is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
Court of Appeal at Kisumu
Kisumu Civil Appeal No. 45 of 2013
Jurisdiction invoked
Article 163(4) of the Constitution - application for certificate to appeal to the Supreme Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Amisi Omukanda v The Independent Elections & Boundaries Commission & 2 others", Case Analysis (2014). Civil Application No. NAI 14 of 2014 (UR 5/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/507/eng@2014-06-27

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