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Court of AppealStruck OutCivil Appeal No. 31 of 2018

Orange Democratic Movement & another v Independent Electoral And Boundaries Commission (IEBC) & another;Speaker-Nairobi County Assembly (Interested Party) [2019] KECA 550 (KLR)

Court of Appeal of Kenya
5 July 2019
581 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot hear appeals over Member of County Assembly elections — such disputes end at the High Court, and wrongly filed appeals get struck out with costs.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nairobi by the Orange Democratic Movement and Eve Malenya against a judgment of the High Court (Nzioka, J.) delivered on 17th July 2018 in Election Petition Appeal No. 4 of 2017, which had allowed an appeal brought by Perpetua Mponjiwa. Mponjiwa, a member of ODM, had sought nomination under the gender top-up rule for the seat of Member of County Assembly for Nairobi County; after failing to be nominated, she petitioned in the Chief Magistrate's Court (Petition No. 3 of 2017), which was dismissed, and her appeal to the High Court succeeded. At the hearing of the present appeal, the 2nd respondent raised a preliminary objection contending that there was no valid notice of appeal filed in the Court of Appeal and that the court lacked jurisdiction over a second appeal arising from an MCA election. The court, following its five-judge decision in Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe and Others, agreed that there is no right of appeal from MCA elections to the Court of Appeal; such appeals end at the High Court. The appeal was accordingly struck out as incompetent, with costs awarded to the 2nd respondent. The decision below was not disturbed on the merits.

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 has jurisdiction to entertain an appeal arising from an election of a Member of County Assembly
  2. 2.Whether the notice of appeal complied with the Court of Appeal (Election Petition) Rules, including as to filing and the setting out of grounds

Key legal issues

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01

Jurisdiction of the Court of Appeal over MCA election appeals

Holding

The Court of Appeal has no jurisdiction to entertain an appeal arising from an election for Member of County Assembly; such appeals end at the High Court.

Reasoning

Relying on its earlier five-judge decision in Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe and Others, which reviewed in detail the Court's jurisdiction over elections, the court held that no right of appeal exists from MCA elections to the Court of Appeal. The present appeal, being a second appeal from an MCA election matter, was therefore incompetent.

p. 2
02

Compliance with the Court of Appeal (Election Petition) Rules as to the notice of appeal

Holding

The notice of appeal, addressed to the High Court but not filed or received by the Court of Appeal and lacking grounds, violated the Court of Appeal (Election Petition) Rules.

Reasoning

Counsel for the 2nd respondent submitted that the notice of appeal was addressed to the High Court of Kenya at Nairobi but was never filed or received by the Court of Appeal, and that it set out no grounds, both contrary to the Court of Appeal (Election Petition) Rules. The court accepted these deficiencies as part of the basis for striking out the appeal.

p. 1

Legal principles established

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  • There is no right of appeal to the Court of Appeal from elections of a Member of County Assembly; such appeals end at the High Court level.

Court orders

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  1. 1.The appeal is struck out as incompetent for want of jurisdiction
  2. 2.Costs are awarded to the 2nd respondent

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Election Petition Appeal No. 4 of 2017
Jurisdiction invoked
Court of Appeal (Election Petition) Rules; the court found no right of appeal to the Court of Appeal from MCA elections, appeals in that respect ending at the High Court

Relief refused

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Hearing of the appeal on its merits

The court lacked jurisdiction to entertain a second appeal arising from an MCA election; no right of appeal exists from such elections to the Court of Appeal

p. 2

Costs

Costs awarded to the 2nd respondent (Perpetua Mponjiwa): "We award costs to the 2nd 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.

It was found that there is no right of appeal from elections arising from an election for MCA to this Court. Appeals in that respect end at the High Court level.
p. 2Absence of right of appeal to the Court of Appeal from MCA elections
In the event and following those findings we have no jurisdiction to entertain this appeal which is incompetent and it is hereby struck out. We award costs to the 2nd respondent.
p. 2Final orders - appeal struck out for want of jurisdiction with costs to the 2nd respondent
According to counsel we have no jurisdiction to entertain a second appeal like this one arising from elections of MCA.
p. 1Preliminary objection on jurisdiction

Issues in the judgment

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minor

Coram lists the second judge as 'ODEK' while the signature block reads 'J. OTIENO-ODEK', the same judge under slightly different renderings

minor

The heading describes the document as a 'RULING OF THE COURT' although it disposes of the appeal by striking it out with costs

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, "Orange Democratic Movement & another v Independent Electoral And Boundaries Commission (IEBC) & another;Speaker-Nairobi County Assembly (Interested Party) [2019] KECA 550 (KLR)", Case Analysis (2019). Civil Appeal No. 31 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/550/eng@2019-07-05

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