Attorney General & another v Muge & 2 others (Civil Appeal 147 of 2017) [2017] KECA 191 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed MCAs' terms end at the general election on the second Tuesday of August every five years, and that holding elective office is not a property right.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Articles 177(1)(a) and 177(4) of the Constitution are in conflict or inconsistent with each other
- 2.Whether the term of office of MCAs who held office before the 8th August 2017 general election should end on 5th March 2018, being five years from the 4th March 2013 general election under Article 177(4)
- 3.Whether holding the elections for MCAs on 8th August 2017 constituted arbitrary deprivation of their property
- 4.Whether by reason of any such deprivation the affected MCAs were entitled to compensation in damages
Key legal issues
#Whether Articles 177(1)(a) and 177(4) of the Constitution conflict
They do not conflict; they complement each other and must be read harmoniously so that MCAs are elected on the same general election day, the second Tuesday in August of every fifth year, notwithstanding the five-year term stipulated in Article 177(4)
The Court applied the harmonious interpretation rule: constitutional provisions must sustain, not destroy, each other. The reduction of the MCA term by about 8 months was occasioned by transitional events (post-2007 election violence, delayed dissolution of Parliament and section 9 of the Sixth Schedule) for which no one could be blamed. A construction producing an absurd or impracticable result, and adverse to public interest, must be avoided. The fixed election date reflects the constitution-making history and purpose of electoral certainty.
Whether the right to hold elective office is a property right attracting damages when the term is shortened by a general election
It is not. A public or elective office is not the property of the office-holder; there is no legitimate expectation to hold office to the end of its term, and compensation is claimable only for remuneration for service actually rendered
Drawing on foreign authority (South African, American, Philippines) and its own decision in Justice Kalpana H. Rawal, the Court held that security of tenure only means removal must be for cause with due process. Under Article 194 an MCA may vacate office before expiry of term, so the term cannot be a compensable property right. Awarding damages for unserved terms would burden the taxpayer with astronomical sums and produce a nugatory public expenditure.
The correct construction of the election date formula 'the second Tuesday in August, in every fifth year'
Using Article 259(5)(c) on computation of time, the second general election fell on 8th August 2017, and subsequent elections follow the second Tuesday of August every fifth year (the next being 11th August 2022)
The Court adopted the rule in Article 259(5)(c) that a period expressed in years ends at the beginning of the date of the relevant year corresponding to the start date. The learned Judge referred to Article 259(5) but failed to apply it accurately. The formula was historically justified by the clamour to remove the President's power to fix election dates, as documented in the CKRC Report and Hansard records.
Legal principles established
#- No one provision of the Constitution is superior or inferior to another; they are complementary and must be read as an integrated and cohesive whole, and no court may declare one article of the Constitution inconsistent with another
- There is no legitimate expectation or property right in holding an elective public office for the full term; an office-holder is entitled only to remuneration for the period service was actually rendered
- The general election for all elective positions under Articles 101(1), 136(2), 177(1)(a) and 180(1) shall be held on the same day, being the second Tuesday in August in every fifth year, and the five-year term of a county assembly must be read subject to that fixed election date
Court orders
#- 1.Appeal allowed
- 2.Judgment of the High Court of 27th April 2017 set aside
- 3.Substitution with an order dismissing High Court Petition No. 576 of 2015 (as consolidated with Petition No. 118 of 2016 and No. 148 of 2016)
- 4.Cross-appeal dismissed
- 5.No orders as to costs owing to the public interest nature of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. 576 of 2017 (consolidated with Petition No. 118 of 2016 and Petition No. 148 of 2016)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Act, from a first-instance constitutional petition decided by the High Court (the judgment does not cite a specific jurisdictional article)
- Consolidated with
- H.C. Constitutional Petition No. 576 of 2017, Petition No. 118 of 2016, Petition No. 148 of 2016
Relief refused
#Damages for loss of income for the uncompleted term of office of MCAs
There is no legitimate expectation or property right in holding an elective public office for the full term; the award was based on misapplication of the law
Declaration of a conflict between Articles 177(1)(a) and 177(4)
No court can declare one provision of the Constitution inconsistent with another; constitutional provisions must be harmoniously read as an integrated whole
1st respondent's cross-appeal seeking election date of 3rd March 2018
Lacked merit; the second Tuesday in August in every fifth year is the constitutionally ordained election date and the five-year election cycle has been restored
Costs
Because of the public interest nature of this appeal, we make no orders 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.
Accordingly there is considerable merit in this appeal. We accordingly allow it and set aside the judgment of the High Court of 27th April, 2017 and substitute it with an order dismissing High Court Petition No. 576 of 2015 as consolidated with Petition No. 118 of 2016 and No. 148 of 2016.
Because of the public interest nature of this appeal, we make no orders as to costs.
From the foregoing, no constitutional provision is superior or inferior to another. They are complementary and must be read as an integrated and cohesive whole.
there is no such a thing as legitimate expectation to hold, to the end of its term, a public or elective office since a public office is not the property of the office-holder.
Applying the above principles to the current circumstances, reading Articles 177(1)(a) and 177(4) and the Constitution holistically and bearing in mind the history of constitution- making in this country, we hold the firm view that there is no contradiction in terms or application.
Issues in the judgment
#The High Court judgment as reproduced in the body of the appeal records the election date as '8th August 2017', but the block quotation of paragraph [42] later in the judgment reads '28th August 2017 (sic)' - an internal discrepancy in the quoted text
The final orders refer to dismissing 'High Court Petition No. 576 of 2015' while the cause title and the rest of the judgment consistently refer to Petition No. 576 of 2017 - an internal inconsistency in the petition number
South Dakota v North Carolina is cited as '192 U.S 268 (1904)' when first mentioned by the Judge, and as '192 US 268 (1940)' when cited by this Court - inconsistent year for the same citation
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Onyango v Speaker County Assembly of Migori & 3 others (Cause E088 of 2023) [2025] KEELRC 403 (KLR)[2025] KEELRC 403 (KLR)17 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Muge & 2 others (Civil Appeal 147 of 2017) [2017] KECA 191 (KLR)", Case Analysis (2017). Civil Appeal No. 147 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/191/eng@2017-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.