Lesirma Simeon Saimanga v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 533 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an election appeal because a defective Notice of Appeal cannot be fixed using constitutional principles — follow the rules exactly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant filed a valid Notice of Appeal as contemplated under Rule 6 of the Court of Appeal (Election Petition) Rules, 2017 so as to invoke the jurisdiction of the Court
- 2.Whether the provisions of Article 159 of the Constitution cure an invalid or irregularly filed Notice of Appeal
- 3.Whether the respondents' Notice of Motion to strike out the Record of Appeal was filed out of time under Rule 19(1) of the 2017 Rules, having regard to the disputed date of service
Key legal issues
#Validity of the Notice of Appeal under Rule 6 of the 2017 Rules
The Notice of Appeal was invalid: it was filed in the High Court registry rather than the Court of Appeal registry, it was not in the prescribed Form EPA 1 format, it did not set out the grounds of appeal, and it purported to appeal against the 'whole' of a judgment notwithstanding that appeals lie on matters of law only under section 85A of the Elections Act.
Rule 6(1)-(5) of the Court of Appeal (Election Petition) Rules, 2017 prescribes where, when and in what form a Notice of Appeal must be lodged. The appellant filed at the High Court registry, contrary to the definition of 'registry' and 'court'. The notice also lacked numbered grounds of appeal and challenged the whole judgment, including findings of fact, although section 85A of the Elections Act confines election petition appeals to matters of law. The cumulative defects rendered the notice invalid and incapable of invoking the Court's jurisdiction.
Whether a valid Notice of Appeal is a jurisdictional prerequisite
Yes. The Court endorsed the settled position that the filing of a valid Notice of Appeal is what triggers its appellate jurisdiction; without it, the Court has no basis upon which its jurisdiction can be anchored.
Relying on its own prior decisions (Boy Juma Boy; Abok James Odera; PePco Construction) and Nicholas Kiptoo Arap Korir Salat, the Court affirmed that the Notice of Appeal is the primary, jurisdictional document in an appeal. Since no valid Notice of Appeal existed, there was no valid appeal before the Court, and the Record of Appeal founded on that defective notice had to be struck out.
Whether Article 159 of the Constitution cures procedural defects
No. The oxygen principle and Article 159 were never intended to aid the overthrow of rules of procedure; a party who disregards rules and timelines cannot seek refuge in them.
Adopting Kiage, JA's exposition in Nicholas Kiptoo Arap Korir Salat, subsequently approved by the Supreme Court, the Court held that procedural rules and timelines make adjudication fair, just, certain and even-handed. Courts must not provide succour to parties who exhibit scant respect for rules. The appellant was therefore duty bound to comply with the 2017 Rules and could not rely on Article 159.
Timeliness of the striking-out application under Rule 19(1)
The application was filed within time. The Court was not persuaded that service of the Record of Appeal was effected on 29th March, 2018; service attempted through a 'matatu' driver was unorthodox and unproven, so service was reckoned from 4th April, 2018 and the motion filed on 10th April, 2018 fell within the seven-day window.
Rule 19(1) allows a person affected to apply within seven days of service of the notice or record of appeal to strike it out. The appellant alleged service on 29th March, 2018, but relied on an unorthodox mode of service through a shuttle driver who was not an authorized process server. In the absence of proof of service, the Court preferred the applicants' account of service on 4th April, 2018. The preliminary objection was therefore dismissed.
Legal principles established
#- Under Rule 6 of the Court of Appeal (Election Petition) Rules, 2017, a Notice of Appeal in an election petition appeal must be filed in the Court of Appeal registry within seven days of the decision, in the prescribed form and setting out the grounds of appeal.
- A valid Notice of Appeal is a jurisdictional document; an invalid Notice of Appeal confers no jurisdiction on the Court of Appeal.
- Article 159 of the Constitution cannot be invoked to cure non-compliance with mandatory procedural rules and timelines.
Court orders
#- 1.The appellant's Record of Appeal dated 23rd March, 2018 and served on the 1st and 2nd respondents on the 4th day of April 2018 is struck out
- 2.Costs of the application to the 1st, 2nd and 3rd respondents
- 3.The appellant's Notice of Preliminary Objection is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyahururu
- Election Petition No. 1 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act and the Court of Appeal (Election Petition) Rules, 2017, which require a valid Notice of Appeal to invoke the Court's appellate jurisdiction over election petition appeals on matters of law
Relief refused
#The appellant's plea that Article 159 of the Constitution cure the defective Notice of Appeal
Article 159 and the oxygen principles cannot be used to circumvent rules of procedure
Costs
The Record of Appeal is struck out with costs to the 1st, 2nd and 3rd respondents
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.
We agree that our jurisdiction is invoked by the filing of a valid Notice of Appeal. It follows that an invalid Notice of Appeal cannot confer jurisdiction upon the Court.
This court indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines.
The upshot of the above is that the appellant’s Record of Appeal dated 23 rd March, 2018 and served on the 1 st and 2 nd respondents on the 4th day of April 2018 is hereby struck out with costs to the 1st, 2nd and 3rd respondents.
Issues in the judgment
#The citation year for Nicholas Kiptoo Arap Korir Salat is printed as [2004] eKLR, which appears to be a mis-citation since the case arose from the 2013 presidential election and the judgment quotes Kiage, JA; the judgment also contains internal typographical errors ('Nairob (SIC)', 'CONSITUTION').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lesirma Simeon Saimanga v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 533 (KLR)", Case Analysis (2018). Election Petition Appeal (Application No. 7 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/533/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.