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Court of AppealStruck OutElection Petition Appeal No. 10 of 2018

Emmanuel Changawa Kombe v Dickson Karani Yaa & 2 others [2019] KECA 452 (KLR)

Court of Appeal of Kenya
25 July 2019
AVAlnashir VisramSKS. Gatembu KairuAMA. K. Murgor
725 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that High Court decisions on County Assembly election disputes are final, striking out an MCA's appeal for lacking jurisdiction.

What this practically means

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Executive summary

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Following the 2017 General Elections, the appellant was declared elected Member of the County Assembly for Dabaso Ward in Kilifi County. The 1st respondent challenged the declaration in the Chief Magistrate's Court at Kilifi (Election Petition No. 2 of 2017), and the petition was dismissed on 19th February 2018, the learned Chief Magistrate finding that identified irregularities did not affect the integrity of the results. The 1st respondent appealed to the High Court at Malindi, which on 25th July 2018 (Njoki, J.) allowed the appeal, declared the appellant not validly elected, and directed fresh elections. The appellant appealed to the Court of Appeal at Malindi. At the hearing, the 1st respondent raised a jurisdictional objection, contending that Section 85A of the Elections Act rendered a High Court decision in a County Assembly election challenge final and that a five-judge bench of the Court of Appeal had so held in Mohammed Ali Sheikh. The appellant relied on Article 164(3) of the Constitution and noted pending Supreme Court appeals on the question. Holding itself bound by the five-judge bench decision, and noting that the Supreme Court had issued no stay of it, the Court of Appeal concluded it lacked jurisdiction. The appeal was struck out for want of jurisdiction, with costs awarded to the 1st respondent. No merits issues were determined and the High Court judgment was not disturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction to entertain an appeal from the High Court concerning the election of a Member of a County Assembly in light of Section 85A of the Elections Act and the decision in Mohammed Ali Sheikh

Key legal issues

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01

Jurisdiction of the Court of Appeal over County Assembly election appeals

Holding

The Court of Appeal lacks jurisdiction to hear an appeal concerning the election of a Member of a County Assembly, Section 85A of the Elections Act rendering the High Court's decision final. The five-judge bench decision in Mohammed Ali Sheikh binds a bench of three judges notwithstanding appeals pending before the Supreme Court, as no stay or contrary ruling had been issued.

Reasoning

The court noted the 1st respondent's counsel's objection that Section 85A of the Elections Act circumscribed its jurisdiction, making a High Court decision on a County Assembly election final, and that a five-judge bench had so held unanimously in Mohammed Ali Sheikh. Although the appellant invoked Article 164(3) of the Constitution and pointed to pending Supreme Court appeals, the court held itself bound by the five-judge bench decision since the Supreme Court had neither stayed it nor decided otherwise. Lacking jurisdiction, the court struck out the appeal and awarded costs to the 1st respondent.

p. 2

Legal principles established

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  • The Court of Appeal has no jurisdiction to entertain appeals against decisions of the High Court concerning the election of a Member of a County Assembly; such High Court decisions are final under Section 85A of the Elections Act
  • Where an appellate court lacks jurisdiction over an appeal, the only lawful course is to strike the appeal out

Court orders

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  1. 1.The appeal is struck out for want of jurisdiction
  2. 2.The appellant shall pay the costs of the appeal to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
SK
majority
AM
majority
On appeal from
High Court of Kenya at Malindi
H.C. Election Petition Appeal No. 4 of 2018
Jurisdiction invoked
Section 85A of the Elections Act (which the court held ousted its jurisdiction over appeals concerning election of Members of County Assembly); Article 164(3) of the Constitution was relied on by the appellant but not accepted

Relief refused

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The appellant's substantive appeal against the High Court judgment nullifying his declaration as elected Member of the County Assembly

The Court of Appeal lacked jurisdiction over appeals relating to election of Members of County Assembly, following its five-judge bench decision in Mohammed Ali Sheikh

p. 2

Costs

The appellant shall pay the costs of the appeal to the 1st respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, the only option available is to strike out the appeal for want of jurisdiction which we hereby do. The appellant shall pay the costs of the appeal to the 1st respondent.
p. 2Final orders - striking out for want of jurisdiction and costs
As it stands, the position is that we lack the jurisdiction to entertain the appeal.
p. 2Absence of appellate jurisdiction over County Assembly elections

Issues in the judgment

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minor

Internal inconsistency in the numbering of the 1st respondent's High Court appeal: the memorandum of appeal states it was 'H. C. Election Petition Appeal No. 4 of 2018' while the body of the judgment records that 'the 1st respondent lodged an appeal against the said decision in the High Court being Election Petition No. 4 of 2019'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Emmanuel Changawa Kombe v Dickson Karani Yaa & 2 others [2019] KECA 452 (KLR)", Case Analysis (2019). Election Petition Appeal No. 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/452/eng@2019-07-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.