Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 others
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear second appeals in county assembly (MCA) election petitions; such disputes end at the High Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to hear a second appeal in an MCA election petition
The Court of Appeal has no jurisdiction to hear a second appeal from the High Court in an election petition for member of a county assembly.
Section 75(4) of the Elections Act confines appeals from the Magistrate's Court in MCA election petitions to the High Court on matters of law only, and section 85A confers appellate jurisdiction on the Court of Appeal only for National Assembly, Senate and county governor election petitions. Applying the expressio unius maxim, the omission of MCA appeals is deliberate, consistent with Article 87(1)'s command of timely resolution of electoral disputes. Election petitions are sui generis and governed strictly by the Elections Act.
Per incuriam as a basis for departing from precedent
The Court's prior decisions declining jurisdiction were not made per incuriam and bind the Court; the strict threshold for per incuriam was not demonstrated.
Drawing on Jasbir Rai v Rai Plywoods, the Court reaffirmed that departure from precedent requires demonstration that the earlier decision was made in ignorance of a binding decision of its own, a Supreme Court decision, or a relevant constitutional or statutory provision. The earlier MCA decisions considered all the relevant Articles of the Constitution and sections 75 and 85A of the Elections Act in light of Supreme Court authority, so they cannot be said to have been made per incuriam.
Constitutionality and discrimination challenge to section 85A of the Elections Act
Section 85A is constitutional and not discriminatory; a provision held constitutional by the Supreme Court remains constitutional in all contexts.
The Supreme Court in Frederick Otieno Outa v Jared Odoyo Okello upheld section 85A against a constitutional challenge. The Court rejected the argument that the exclusion of MCA appeals discriminates contrary to Article 27(1), holding that limiting the number of appeals actualises the constitutional value of timely resolution of electoral disputes under Article 87(1). A section cannot be constitutional in one context and unconstitutional in another.
Access to justice and fair hearing
Denial of a second appeal in MCA election petitions does not violate the right of access to justice or fair hearing; the right of appeal is statutory, not a common-law or inherent fundamental right.
The applicant already enjoyed a full hearing before the Magistrate's Court and an appeal to the High Court on matters of law. Limitations on the number of appeals are by design and serve the constitutional imperative of expeditious finality in electoral disputes; a right of appeal must be expressly conferred by statute and cannot be implied from general constitutional language or drafter's silence.
Legal principles established
#- The Court of Appeal has no jurisdiction to entertain a second appeal from the High Court in an election petition concerning the election of a member of a county assembly; such appeals end at the High Court on matters of law only.
- Section 85A of the Elections Act confers no right of appeal to the Court of Appeal in MCA election petition matters; the express mention of National Assembly, Senate and county governor appeals excludes MCA appeals (expressio unius est exclusio alterius).
- A court may depart from its own precedent only where the earlier decision was made per incuriam, and the test for per incuriam is a strict one.
- A right of appeal is a creature of statute and cannot be implied; failure by the legislature to provide for a right of appeal means the right does not exist.
Court orders
#- 1.The Notice of Appeal dated 30th August 2018 filed on 31st August 2018 in Election Petition Appeal No. 32 of 2018 struck out for want of jurisdiction on the part of the Court
- 2.The Preliminary Objection dated 19th September 2018 upheld
- 3.The Record of Appeal filed in Election Petition Appeal No. 32 of 2018 struck out
- 4.Each party to bear his/its own costs in the application
- On appeal from
- High Court of Kenya at Garissa
- Election Petition Appeal No. 6 of 2018
- Jurisdiction invoked
- Article 164(3) of the Constitution read with sections 75(4) and 85A of the Elections Act, No. 4 of 2011; the application was brought under sections 75(4) and 85A(1) and (2) of the Elections Act, rule 35 of the Election (County and Parliamentary) Election Rules, 2017 and rule 19(1) of the Court of Appeal (Election Petition) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 others", Case Analysis (2018). Election Petition Appeal (Application) No. 261 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/75/eng@2018-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.