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Court of AppealDismissedElection Petition Appeal No. 5 of 2018· [2018] KECA 395 (KLR)

Nyutu Peter Kamau v Independent Electoral and Boundaries Commission & 2 others

Court of Appeal of Kenya
31 July 2018
4,663 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out an MP election appeal because the notice of appeal was filed in the wrong court registry, proving procedure can defeat even substantive election claims.

What this practically means

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Executive summary

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The Court of Appeal (Makhandia, Sichale and Kantai, JJ.A.) dismissed an election petition appeal arising from the Mbeere South Constituency parliamentary election of 8th August 2017, in which the 3rd respondent was declared winner with 18,028 votes against the appellant's 2,767. The High Court at Embu (Limo, J.) had dismissed the petition on 14th February 2018. At the hearing the court raised, suo motu, the competence of the appeal: the Notice of Appeal had been lodged in the High Court registry rather than the registry of the Court of Appeal, contrary to Rule 6 of the Court of Appeal (Election Petition) Rules, 2017. Following its own recent decision in Musa Cherutich Sirma and the Supreme Court's jurisprudence in Samuel Kamau Macharia, Salat and Raila Odinga, the court held that a notice of appeal in the correct registry is a jurisdictional prerequisite and that Article 159(2)(d) does not cure such defects on a blanket basis. Although finding the appeal incompetent, the court went on to consider the merits, holding that its jurisdiction under the Elections Act extends only to questions of law. The memorandum of appeal was found to be fraught with matters of fact. On the evidence, none of the allegations of bribery, violence, denial of agents' access or irregularities in Forms 35A were proved; the appellant's own agents had signed the forms. The dismissal of the petition was affirmed and the appeal was dismissed with costs to the respondents.

Key legal issues

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01

Competence of the appeal - defective lodging of Notice of Appeal

Holding

The appeal was incompetent because the Notice of Appeal was filed in the High Court registry instead of the Court of Appeal registry as required by Rule 6 of the Court of Appeal (Election Petition) Rules, 2017.

Reasoning

Rule 6 requires the notice to be lodged in the registry of the Court of Appeal within seven days. The notice was lodged at the High Court at Embu. Filing a timely notice of appeal in the correct registry is a jurisdictional prerequisite. The court could not cure the defect under Article 159, though it nonetheless addressed the other issues raised.

p. 6
02

Scope of appellate jurisdiction under the Elections Act

Holding

The memorandum of appeal was fraught with matters of fact over which the Court of Appeal has no jurisdiction in election petition appeals.

Reasoning

The Elections Act limits appeals to issues of law. Twelve grounds questioning both legal and factual findings could not be entertained to the extent they challenged credibility of witnesses and factual findings. The court found no legal basis for interfering with the trial judge's evaluation of the evidence.

p. 7
03

Proof of election irregularities, bribery and denial of agents' access

Holding

The appellant failed to prove any of the allegations; the trial judge correctly dismissed the petition.

Reasoning

Witnesses called by the appellant were found not credible and gave no direct evidence; the campaign manager witnessed no bribery; Forms 35A bore the signatures of the appellant's own agents, disproving denial of access; alterations on forms were counter-signed and did not affect results.

p. 7

Legal principles established

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  • A notice of appeal in an election petition appeal must be lodged in the registry of the Court of Appeal, not the High Court registry; without a valid Notice of Appeal the appeal does not lie.
  • The Court of Appeal has jurisdiction over election petition appeals only on issues of law, not fact.
  • Article 159(2)(d) is not a panacea for procedural shortfalls and applies on a case by case basis.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs to the respondents
On appeal from
High Court of Kenya at Embu
Election Petition No. 3 of 2017
Jurisdiction invoked
Elections Act, No. 24 of 2011 (appeals from election petitions limited to issues of law) read with Article 164 of the Constitution

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, "Nyutu Peter Kamau v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2018). Election Petition Appeal No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/395/eng@2018-07-31

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