Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutElection Petition Appeal (Application) No. 11 of 2018· [2019] KECA 836 (KLR)

Mohamed Abdul Omar v Kiponda Joseph Joseppe Ngumbao & 3 others

Court of Appeal of Kenya
7 March 2019
758 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

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

#
This is a ruling of the Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) on a notice of motion by the 1st and 2nd respondents seeking to strike out the appellant's election petition appeal, which challenged the judgment of the High Court at Malindi (Thande, J.) in an appeal concerning an election of a Member of County Assembly. A live jurisdictional question - whether the Court of Appeal has jurisdiction under Section 85A of the Elections Act to hear second appeals in MCA elections - had been referred to a five-Judge bench of the Court constituted by the President of the Court in Mohammed Ali Sheikh vs. Abdiwahab Sheikh Osman Hathe & others; Emmanuel Chagao Kombe (interested party) [2018] eKLR, and the parties had agreed to hold this appeal in abeyance pending that determination. The full bench unanimously found that the Court lacked jurisdiction over such second appeals. Before this bench, the appellant argued that the five-Judge decision was not binding (noting a request for another bench to reconsider the issue) and that he enjoyed an automatic right of appeal to the Supreme Court under Article 163(4) of the Constitution. The Court held that the five-Judge bench decision was binding on it and that the only available course was to strike out the appeal for want of jurisdiction. It struck out the appeal, awarded costs to the 1st and 2nd respondents against the appellant, and made no award of costs to the 3rd and 4th respondents, who did not actively participate.

Key legal issues

#
01

Whether the Court of Appeal may entertain a second appeal in an election of a Member of County Assembly

Holding

It may not; the five-Judge bench decision settles that the Court lacks jurisdiction, and that decision binds this bench.

Reasoning

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.

p. 2
02

Whether the appellant's claim of an automatic right of appeal to the Supreme Court under Article 163(4) saves the appeal

Holding

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.

Reasoning

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.

p. 2

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. 1.The appeal is struck out for want of jurisdiction
  2. 2.The appellant shall pay the costs of the appeal to the 1st and 2nd respondents
  3. 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.