Abdirahman Adan Abdikadir & another v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 644 (KLR)
The bottom line
#Kenya's Court of Appeal let an election petitioner withdraw his appeal while allowing a rival candidate to continue the fight through a cross-appeal.
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 should be granted leave to withdraw his appeal with no order as to costs
- 2.Whether the applicant, having been served with the notice of appeal and record of appeal, is a respondent to the appeal with capacity to object to its withdrawal
- 3.Whether the applicant may take over the appeal and prosecute his cross-appeal despite not having filed a record of appeal or security for costs
Key legal issues
#Withdrawal of an election petition appeal
Leave to withdraw was granted since the Election Petition Rules are silent and rule 96(1) of the Court of Appeal Rules permits withdrawal before hearing
The Court of Appeal (Election Petition) Rules contain no specific withdrawal provision, so rule 4(2) imports the Court of Appeal Rules, 2010. Rule 96(1) allows an appellant to lodge a notice of withdrawal at any time before the appeal is called out for hearing, and sub-rule (4) allows an application for leave where not all parties consent. The appellant duly filed and served such a notice; the respondents consented, so leave was granted with no order as to costs.
Status of a party filing a subsequent notice of appeal
The applicant's later notice of appeal was deemed a notice of address for service, making him a respondent with capacity to object and to prosecute a cross-appeal
Rule 80(1) of the Court of Appeal Rules deems a second or subsequent notice of appeal a notice of address for service, and the party giving it a respondent. The applicant was served with the appellant's notice and record of appeal and thus fell within the definition of respondent in rule 2 of the Election Petition Rules. As a respondent, he had filed a valid cross-appeal under rule 10(1) and was entitled to continue it when the appeal was withdrawn.
Whether the applicant could take over the appeal despite not filing a record of appeal or security for costs
Yes - as a respondent under rule 80(1) he was under no obligation to file a record of appeal, and he was allowed to proceed with his cross-appeal on depositing security
The respondents argued the applicant was a stranger who could not piggyback on the appeal. The Court held that because the appellant had already filed a record, the applicant, as a deemed respondent, needed to file none. The applicant's failure to deposit security was cured by the order directing him to deposit Kshs.500,000/= under rule 27(1) of the Election Petition Rules within ten days, allowing the cross-appeal to proceed to hearing.
Legal principles established
#- A party who gives a subsequent notice of appeal from the same decision is deemed a respondent and is under no obligation to file a record of appeal where an earlier appellant has already filed one
- A court should not obstruct an appellant who has lost interest and wishes to withdraw an appeal; respondents cannot compel an unwilling appellant to continue, and may at most seek costs
- A respondent served with a notice of appeal and record of appeal may take over the prosecution of the appeal through a cross-appeal once the original appellant withdraws
Court orders
#- 1.Leave granted to the appellant to withdraw his appeal with no order as to costs in favour of the respondents and the applicant
- 2.Adow Mohammed Abikar declared the appellant in terms of the notice of cross-appeal dated 8th March, 2018
- 3.The new appellant to deposit Kshs.500,000/= as security for costs under rule 27(1) of the Election Petition Rules within ten days
- 4.Respondents to file and serve written submissions in response within ten days
- 5.The appellant at liberty to file a reply to the respondents' submissions within four days of service
- 6.Costs of the application dated 20th March, 2018 to abide the outcome of the appeal
- 7.Appeal to be heard on 20th June, 2018
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition Nos. 13 & 16 of 2017
- Jurisdiction invoked
- Court of Appeal (Election Petition) Rules, 2017 read with the Court of Appeal Rules, 2010 (appellate jurisdiction over a dismissed election petition)
Relief refused
#Objection by the respondents to the applicant taking over the appeal
The applicant, having been served with the notice of appeal and record of appeal, is a respondent under rule 80(1) and is entitled to proceed with his cross-appeal; the appeal itself was allowed to be withdrawn
Costs
Withdrawal of the appeal with no order as to costs in favour of the respondents and the applicant; costs of the application dated 20th March, 2018 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.
This Court should not stand on the way of an appellant who has lost interest in his own appeal and wishes to withdraw it. Equally, respondents cannot force an unwilling appellant to continue with an appeal; at best they can only seek costs of the appeal.
Where two or more parties have given notice of appeal from the same decision, the second and all subsequent notices to be lodged shall be deemed to be notices of address for service within the meaning of rule 79 and the party or parties giving those notices shall be respondents in the appeal.
But now that the appellant has withdrawn his appeal, the applicant ought to be allowed to proceed with his cross appeal, having filed the same on 8 th March, 2018.
The applicant, ADOW MOHAMMED ABIKAR, shall be the appellant in terms of the notice of cross appeal dated 8 th March, 2018. Consequently, he should deposit a sum of Kshs.500,000/= being security for costs in terms of rule 27(1) of this Court's Election Petition Rules.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdirahman Adan Abdikadir & another v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 644 (KLR)", Case Analysis (2018). Election Petition Appeal No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/644/eng@2018-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.