Timamy Issa Abdalla v Independent Elections & Boundaries Commission (IEBC) & 3 others [2018] KECA 628 (KLR)
The bottom line
#Kenya's Court of Appeal refused to move an election appeal to Nairobi, ruling counsel's illness alone wasn't enough without showing real injustice.
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 Court has power, absent an express provision in the Rules or statutes, to transfer an election petition appeal from one Court of Appeal station to another without the parties' consent
- 2.Whether the exercise of the Court's inherent jurisdiction favoured the transfer of the appeal to Nairobi on account of lead counsel's indifferent health
- 3.Whether the alternatives available (representation by other counsel, written submissions, remote participation by technology) rendered the transfer unnecessary
Key legal issues
#Whether the Court can transfer an election petition appeal absent an enabling rule or the parties' consent
There is no express power to transfer; transfer without consent requires the exercise of the Court's inherent jurisdiction, which is applied case by case according to the circumstances of each case
All counsel agreed no rule or statute conferred a transfer power. The court held that such an application entreats the inherent jurisdiction, exercised case by case, underpinned by Article 159(2) of the Constitution and the object of the Election Petition Rules to facilitate just, expeditious and impartial determination. Administratively and with consent, transfers are common, but election petitions are sui generis and strictly governed by the Constitution, the Elections Act and rules made thereunder.
Whether lead counsel's ill health justified the transfer to Nairobi
Sympathy for counsel's health was insufficient; because adequate alternatives existed (two counsel on record, written submissions, remote participation by video link or skype) and no injustice to the appellant was demonstrated, the discretion was refused
The court weighed the overriding objectives of expeditious disposal and impartiality, the respondents' strong objections (including that supporters wish to follow proceedings), and the four alternatives recited. It accepted counsel's explanations for his other engagements but found the application did not deserve the exercise of the court's discretion. In discretionary matters, no case is precedent for another, each turning on its own facts.
Allegations of malafides and forum shopping against the applicant
The court disregarded the unsubstantiated allegations of sinister motives, though noting they were not denied
The third respondent alleged the application was a disguised attempt at forum shopping supported by 'judicial wheeler dealers'. The court declined to act on these allegations because they were not substantiated, and likewise accepted counsel's explanation for recent litigation in Mombasa. The application was determined purely on the legal and practical merits.
Legal principles established
#- Absent an express provision in the Court of Appeal (Election Petition) Rules, 2017 or other statute, the Court has no power to transfer an election petition appeal to another station without the express consent of the parties; transfer without consent can only occur, if at all, in exercise of inherent jurisdiction on a case-by-case basis where injustice would otherwise result
- Where a party seeks transfer of an election petition appeal, the court weighs the overriding objectives of expeditious and impartial determination, and adequate alternatives for counsel's participation (other counsel, written submissions, remote participation by technology) will defeat the application unless injustice is shown
Court orders
#- 1.The application to transfer Election Petition Appeal No. 4 of 2018 from Malindi to Nairobi was dismissed
- 2.Costs of the application to abide the outcome of the Appeal
- 3.Liberty granted to any party, at their own cost, to use technology in addressing the Court during the hearing of the Election Petition Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Election Petition No. 3 of 2017
- Jurisdiction invoked
- Appellate jurisdiction under Article 164(3) of the Constitution read with Rules 4(2), 13 and 20(2)(c) of the Court of Appeal (Election Petition) Rules, 2017, and the Court's inherent jurisdiction
Relief refused
#Transfer of Election Petition Appeal No. 4 of 2018 from the Court of Appeal at Malindi to the Court of Appeal at Nairobi
No provision in the Rules permits transfer absent consent; the available alternatives allowed lead counsel to represent the appellant without transfer, and no injustice was demonstrated
Costs
Dismissed with costs to abide the outcome of the Appeal
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.
It is common ground that there is no provision in the Court of Appeal Election Petition Appeal Rules, the Court of Appeal Rules or other statutes giving the Court power to transfer an Appeal as sought by the applicant.
The object and purpose of these Rules is to facilitate the just, expeditious and impartial determination of election petition appeals in exercise of the Court's appellate jurisdiction under Article 164(3) of the Constitution
in matters of discretion no one case can be an authority for another. As Kay L.J. said in Jenkins vs. Bushby "the court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion."
Accordingly, it is dismissed with costs to abide the outcome of the Appeal. For avoidance of doubt, the applicant or indeed any party at their own cost will be at liberty to use technology in their address to Court during the hearing of the Election Petition Appeal.
Issues in the judgment
#The parties' names, spellings and the identity of the second respondent (Adan Ali Mohamed, described in the replying affidavit extract as a supporter figure in Lamu County) are not fully consistent with the roles recited in the body of the ruling; the ruling also spells counsel's name variously (Nowrojee/Nowrowjee)
The application is a transfer application heard as an interlocutory ruling within Election Petition Appeal No 4 of 2018; the caption describes it as an 'ELECTION PETITON APPEAL (APPLICATION NO 4 OF 2018)' - the jurisdiction line invokes Article 164(3) appellate jurisdiction rather than a specific transfer provision, as none exists
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timamy Issa Abdalla v Independent Elections & Boundaries Commission (IEBC) & 3 others [2018] KECA 628 (KLR)", Case Analysis (2018). Election Petition Appeal (Application No 4 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/628/eng@2018-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.