Mbwana v Independent Electoral and Bounderies Commission (IEBC) & 4 others; Warrakah & 2 others (Applicant) (Election Petition Appeal 4 of 2017) [2018] KECA 629 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that voters cannot take over an election appeal after the original appellant withdraws it, because no law allows substitution.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appellant intent on withdrawing an election petition appeal can be substituted by another person
- 2.Whether the Court has jurisdiction to entertain the substitution application after the consent to withdraw the appeal was filed
- 3.Whether Rule 24 of the Election Petition Rules can be imported into election petition appeals before the Court of Appeal
- 4.Whether leave of the Court is required for withdrawal of an appeal where all parties consent under Rule 96 of the Court of Appeal Rules
Key legal issues
#Whether Rule 24 of the Election Petition Rules (substitution on withdrawal of a petition) applies to election petition appeals
It does not. The Election Petition Rules apply to petitions in the Election Court; the omission of a substitution provision from the Election Appeal Rules was deliberate and the Court cannot legislate.
The Court construed the applicable rules. Rule 3 of the Election Petition Rules confines them to petitions in the Election Court; Rule 4(2) of the Election Appeal Rules invokes the Court of Appeal Rules for civil appeals. Because the Rules Committee made both sets of rules at the same time, the absence of a substitution provision in the Election Appeal Rules was deliberate. Citing Potter, JA, the judiciary's function is to interpret, not make, law.
Effect of a consented withdrawal of an appeal under Rule 96 of the Court of Appeal Rules
The appellant complied with Rule 96; where all parties consent, leave is unnecessary and upon filing the consent the appeal is struck out and ceases to exist.
Rule 96(3) provides that on a consent signed by the parties the appeal is struck out from the list of pending appeals; leave under Rule 96(4) is only needed where parties do not consent. The applicants were never parties to the appeal, so their consent was not required. The appeal had therefore ceased to exist before the substitution application was made.
Strict interpretation of electoral law
Electoral law is sui generis and must be strictly interpreted within the Constitution and electoral statutes; a self-contained electoral code cannot be supplemented by importing foreign procedural rules.
Restating its own earlier decision in Mbaraka Issa Kombe, the Court held that electoral law is a special jurisdiction strictly confined to the Constitution and relevant electoral statutes. To import the Election Petition Rules would be to donate to itself jurisdiction it does not have, contrary to Samuel Kamau Macharia.
Legal principles established
#- There is no procedural provision permitting substitution of an appellant who withdraws an election petition appeal; the Election Petition Rules apply only to petitions in the Election Court, and the applicable rules on appeal are the Election Appeal Rules and the Court of Appeal Rules.
- Where all parties to an appeal consent to its withdrawal under Rule 96(3) of the Court of Appeal Rules, no leave of the Court is required and the appeal stands withdrawn and struck out upon filing of the consent.
- Once a consent to withdraw an appeal is filed, the appeal ceases to exist and the Court cannot entertain a subsequent application for substitution.
Court orders
#- 1.Dismissal of the applicants' application for substitution with costs to the appellant and respondents
- 2.The appellant's appeal struck out from the list of pending appeals in the Court
- 3.Security for costs refunded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Election Court (High Court), Mombasa
- Election Petition No. 5 of 2017
- Jurisdiction invoked
- Articles 164(3)(a) and 22(4) of the Constitution and Section 85A(1) of the Elections Act
Relief refused
#Substitution of the applicants as appellants in place of the withdrawing appellant
No rule sustains or justifies the application; the Election Petition Rules do not apply to appeals and the omission of a substitution provision in the Election Appeal Rules was deliberate
Invocation of Article 22(4) of the Constitution / Mutunga Rules to fill the procedural lacuna
Article 22(4) relates to the Mutunga Rules and was not intended to apply to the Election Appeal Rules
Costs
The application is dismissed with costs to the appellant and 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.
Ultimately, we find that the application lacks merit and is hereby dismissed with costs to the appellant and respondents. We hereby strike out his appeal from the list of pending appeals in this Court and direct that the security for costs be refunded to the appellant.
we find that leave of this Court is not required where parties consent to withdrawal of an appeal. As per Rule 96(4) leave is only sought in the event the parties disagree on the same.
As it stands there is no rule which sustains or justifies the application before us.
It is trite that electoral law is a special jurisdiction whose interpretation is strictly confined within the parameters of the Constitution and relevant electoral statutes ...
the appeal had ceased to exist by the time the application for substitution was made.
Issues in the judgment
#Counsel for the applicants is recorded as Mr. Orengo and later as Mr. Simiyu without explanation, though both represent the applicants in submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbwana v Independent Electoral and Bounderies Commission (IEBC) & 4 others; Warrakah & 2 others (Applicant) (Election Petition Appeal 4 of 2017) [2018] KECA 629 (KLR)", Case Analysis (2018). Election Petition Appeal (Election Court Mombasa Election Petition No. 5 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/629/eng@2018-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.