Orange Democratic Movement & another v Independent Electoral And Boundaries Commission (IEBC) & another;Speaker-Nairobi County Assembly (Interested Party) [2019] KECA 550 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to entertain an appeal arising from an election of a Member of County Assembly
- 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
#Jurisdiction of the Court of Appeal over MCA election appeals
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.
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.
Compliance with the Court of Appeal (Election Petition) Rules as to the notice of appeal
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.
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.
Legal principles established
#- 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
#- 1.The appeal is struck out as incompetent for want of jurisdiction
- 2.Costs are awarded to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Costs awarded to the 2nd respondent (Perpetua Mponjiwa): "We award costs to the 2nd respondent."
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 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.
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.
According to counsel we have no jurisdiction to entertain a second appeal like this one arising from elections of MCA.
Issues in the judgment
#Coram lists the second judge as 'ODEK' while the signature block reads 'J. OTIENO-ODEK', the same judge under slightly different renderings
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.