Mohamed Abdul Omar v Kiponda Joseph Joseppe Ngumbao & 3 others
The bottom line
#Kenya's Court of Appeal confirmed it has no power to hear second appeals in MCA election disputes, and struck this appeal out.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal may entertain a second appeal in an election of a Member of County Assembly
It may not; the five-Judge bench decision settles that the Court lacks jurisdiction, and that decision binds this bench.
A five-Judge bench, specially constituted by the President of the Court to resolve a live jurisdictional question recurring in several appeals, unanimously held that Section 85A of the Elections Act does not confer jurisdiction on the Court of Appeal to hear second appeals in MCA elections. Parties had agreed to hold this appeal in abeyance pending that determination. Once determined, the decision binds this bench, leaving striking out as the only available course.
Whether the appellant's claim of an automatic right of appeal to the Supreme Court under Article 163(4) saves the appeal
It does not save the appeal; the respondents argued striking out would not deprive the appellant of that right, and the Court struck out the appeal regardless.
The appellant's counsel argued the appeal was his only route to the Supreme Court because a constitutional issue was said to arise from the five-Judge bench decision. Counsel for the 1st and 2nd respondents countered that the binding five-Judge decision was dispositive and that striking out the appeal would not deprive the appellant of his right to appeal to the Supreme Court. The Court did not entertain the constitutional-issue argument and applied the binding jurisdictional ruling.
Legal principles established
#- The Court of Appeal has no jurisdiction to entertain second appeals in respect of elections of Members of County Assembly under Section 85A of the Elections Act.
- A decision of a full (five-Judge) bench of the Court of Appeal on a jurisdictional question binds a three-Judge bench of the same Court.
Court orders
#- 1.The appeal is struck out for want of jurisdiction
- 2.The appellant shall pay the costs of the appeal to the 1st and 2nd respondents
- 3.No costs are awarded to the 3rd and 4th respondents, who did not take an active part in the appeal
- On appeal from
- High Court of Kenya at Malindi
- H.C. Election Petition Appeal No. 5 of 2018
- Jurisdiction invoked
- Section 85A of the Elections Act (as construed by the five-Judge bench in Mohammed Ali Sheikh vs. Abdiwahab Sheikh Osman Hathe & others; Emmanuel Chagao Kombe (interested party) [2018] eKLR) - the Court of Appeal lacks jurisdiction to hear second appeals in elections of Members of County Assembly
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Abdul Omar v Kiponda Joseph Joseppe Ngumbao & 3 others", Case Analysis (2019). Election Petition Appeal (Application) No. 11 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/836/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.