Musa Cherutich Sirma v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 544 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an MP election appeal because the notice of appeal was filed in the wrong court registry, proving procedure can be fatal.
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 notice of appeal filed at the High Court of Kenya at Kabarnet instead of the registry of the Court of Appeal was a valid notice of appeal under rule 6 of the Court of Appeal (Election Petition) Rules, 2017
- 2.Whether the record of appeal founded on that notice is competent and should be struck out
- 3.Whether the applications to strike out were filed within the seven-day window prescribed by rule 19 of the rules
- 4.Whether security for costs should be ordered (prayer abandoned at hearing)
Key legal issues
#Whether a notice of appeal filed in the High Court rather than the Court of Appeal registry is valid
It is invalid. Rule 6 requires the notice of appeal to be lodged in the registry of the Court of Appeal, defined as the registry of that Court; the notice here stated on its face that it was lodged in the High Court at Kabarnet, so no proper notice of appeal was ever filed
The court traced the definitions in the 2017 rules: a notice of appeal is one lodged in accordance with rule 6, and 'registry' means the registry of the Court of Appeal. Rule 6 is mandatory for election petition appeals, which are a special jurisdiction. The document bore on its face that it was drawn, dated and lodged at Kabarnet in the High Court. Reliance on Article 159(2)(d) could not cure the defect, following the Supreme Court's guidance that the provision is not a panacea for procedural shortfalls.
Whether a notice of appeal is a jurisdictional prerequisite
Yes, following the Supreme Court in Nicholas Kiptoo Arap Salat, a notice of appeal is a primary document and a jurisdictional prerequisite without which an appellate court has no jurisdiction to determine the merits
The court held itself bound by the Supreme Court's decision in Salat, which declared that a notice of appeal is a primary document to be filed outright and is a jurisdictional prerequisite, quoting the California Supreme Court in Silverbrand v County of Los Angeles on the finality rationale. Because the court's jurisdiction can only be triggered by a valid notice of appeal, its absence renders the entire appeal incompetent regardless of the substance of the grievance.
Whether the motions to strike out were filed out of time under rule 19
No. The seven-day period in rule 19 runs from service of the notice of appeal or record of appeal, and the applicants filed within seven days of service of the record of appeal
The appellant argued the motions were filed 28 and 32 days after the notice of appeal. The court agreed with the applicants that since the challenge was to the validity of the record of appeal containing an invalid notice, the applicants could only move once served with that record. Service occurred on 3rd April 2018; the motions were filed on 6th and 10th April 2018, within the window. Rule 19(2) bars raising the issue later if the application is not filed within the period.
Whether Article 159(2)(d) of the Constitution or substantial compliance could save the defective notice of appeal
No. Article 159(2)(d) is not a panacea for procedural shortfalls and a notice of appeal goes to jurisdiction, which cannot be cured by the overriding objective
The court relied on the Supreme Court's pronouncement in Raila Odinga v IEBC that Article 159(2)(d) is applied on a case by case basis and does not excuse every procedural shortfall. Election petitions are a class of their own, neither civil nor criminal, governed by strict timelines and special rules. Because the missing valid notice of appeal is a jurisdictional defect rather than a mere technicality, the substantive justice argument and the claim of being misled (unsupported by evidence) could not rescue the appeal.
Legal principles established
#- A notice of appeal in an election petition appeal is a jurisdictional prerequisite and must be filed in the registry of the Court of Appeal, not the High Court; without a valid notice of appeal the appeal does not lie
- A record of appeal founded on an invalid notice of appeal is irregular and incompetent and will be struck out; rule 8 of the Court of Appeal (Election Petition) Rules requires the record to contain a valid notice of appeal
- An application to strike out a record of appeal containing an invalid notice of appeal is made in time if filed within seven days of service of the record of appeal, since only upon service of the record can the invalidity of the notice be challenged
Court orders
#- 1.The record of appeal filed by the appellant, which contains an invalid notice of appeal, is struck out as irregular and incompetent
- 2.The appeal is struck out
- 3.Costs of the application and of the appeal awarded to the 1st and 2nd Respondents/Applicants as well as the 3rd Respondent/Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kabarnet
- Election Petition No. 1 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals from the High Court in election petitions lie in the Court of Appeal on matters of law only); Court of Appeal (Election Petition) Rules, 2017
Relief refused
#Deposit of security for costs of Kshs.2,000,000
The prayer was not pursued at the hearing because the appellant had already deposited security for costs with the court
Declaration of the appellant as a vexatious litigant
Raised in submissions by the 3rd applicant but not upheld in the court's orders
Validation of the notice of appeal filed at the High Court on the ground that the appellant was misled by registry staff
A serious allegation but no evidence was furnished to establish it as a fact
Costs
Costs of the application and of the appeal awarded to the 1st and 2nd Respondents/Applicants as well as the 3rd Respondent/Applicant
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 are satisfied that the record of appeal filed by the 3rd respondent which contains an invalid notice of appeal is irregular and incompetent and should be struck out. The appeal is accordingly struck out and we award costs of the application and of the appeal to the 1st and 2nd Respondents/Applicants as well as the 3rd Respondent/Applicant.
we must hold that a notice of appeal is a jurisdictional prerequisite without which an appeal does not lie.
It cannot therefore be said that the 3rd respondent at any time complied with filing a proper notice of appeal as required by the rules of this Court regarding election petition appeals where a notice of appeal must be filed at the Registry of the Court.
Election petitions form their own category and are neither controlled by Civil Procedure Act and Rules made thereunder nor are they controlled by the Civil Procedure Rules. They are neither criminal nor civil in nature. They are a class of their own.
Indeed, this Court has had occasion to remind litigants that Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls.
the issue as to whether a Court of Law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter for without jurisdiction the court cannot entertain any proceedings.
Issues in the judgment
#The notice of appeal as reproduced states it was dated at Kabarnet on 7th March 2018, but the body of the ruling repeatedly refers to it as filed on 9th March 2018; the reproduced document also contains the undated lodging line 'LODGED in the High Court of Kenya at Kabarnet this day of May 2018' which appears internally inconsistent (May rather than March)
The ruling variously describes the appellant (Sirma) as 'the applicant' and the respondents (IEBC, Returning Officer and Lessonet) as 'the applicants', while the caption describes Sirma as Appellant/Respondent and the others as Respondents/Applicants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musa Cherutich Sirma v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 544 (KLR)", Case Analysis (2018). Election Petition Appeal (Application) No. 9 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/544/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.