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. of 2018, Kisumu

Okal v Ojuok & 2 others (Election Petition Appeal 39 of 2018) [2019] KECA 977 (KLR)

Court of Appeal of Kenya
14 February 2019
1,234 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that MCA election disputes end at the High Court — no second appeal is allowed, and filing one costs you.

What this practically means

#

Executive summary

#
This ruling of the Court of Appeal at Kisumu (Githinji, Okwengu and Mohammed, JJA) determined two applications seeking to strike out the appellant's appeal against the High Court's judgment of 12th July 2018, by which Cherere, J. had allowed an election petition appeal and declared the 1st respondent validly elected as Member of County Assembly for Central Nyakach Ward. The 2nd and 3rd respondents (the IEBC and the Returning Officer) and the 1st respondent separately moved to strike out the appeal on the ground that no second appeal lies to the Court of Appeal concerning election of a Member of County Assembly. The Court noted that a Five-Judge Bench in Mohammed Ali Sheikh v Abdi Wahab had unanimously restated previous decisions that the Court has no jurisdiction to hear such second appeals, and that the Kisumu court had followed that position in Marthlida Auma Oloo and Mogesi Agnes Bange. Adopting the passage from Marthlida, the Court held the appellant had raised nothing new, declined to entertain his submission that sections 74, 75 and 85A of the Elections Act were unconstitutional, and found it unnecessary to consider the appeal on the merits. It allowed both applications, struck out the appeal as incompetent under Rule 19(1) of the Court of Appeal (Election Petition) Rules, 2017, and ordered the appellant to pay the costs of the 1st respondent and of the 2nd and 3rd respondents jointly.

Questions the Court framed

#

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

  1. 1.Whether this Court has jurisdiction to entertain a second appeal concerning the election of a Member of County Assembly
  2. 2.Whether the appeal should be struck out on that ground

Key legal issues

#
01

Jurisdiction of the Court of Appeal to hear a second appeal on election of a Member of County Assembly

Holding

The Court has no jurisdiction; such appeals lie only from the election court to the High Court. The appeal is incompetent and must be struck out.

Reasoning

A Five-Judge Bench of the Court in Mohammed Ali Sheikh's case unanimously restated previous decisions that no second appeal lies from a High Court appellate decision on the validity of election of a Member of County Assembly. The Kisumu court had been following that line in Marthlida Auma Oloo and Mogesi Agnes Bange. The appellant raised nothing new; counsel's constitutional submissions could not confer jurisdiction. It was unnecessary to consider the appeal on the merits.

p. 3

Legal principles established

#
  • There is no right of second appeal to the Court of Appeal from the High Court in its appellate jurisdiction concerning the validity of election of a Member of County Assembly; the Court has no jurisdiction to hear such an appeal.

Court orders

#
  1. 1.The two applications are allowed
  2. 2.The appeal is found incompetent and struck out under Rule 19(1) of the Court of Appeal (Election Petition) Rules, 2017
  3. 3.The appellant to pay the costs of the appeal to the 1st respondent on the one part and to the 2nd and 3rd respondents jointly on the other part

The bench

#

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

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Kisumu
Election Petition Appeal No. 3 of 2018
Jurisdiction invoked
Sections 75(4) and 85A of the Elections Act; Rules 42 and 84 of the Court of Appeal Rules; Rules 17(1) and 19(1) of the Court of Appeal (Election Petition) Rules, 2017

Relief refused

#

Appellant's request to prosecute the appeal and to declare sections 74, 75 and 85A of the Elections Act unconstitutional

No right of second appeal lies from the High Court in its appellate jurisdiction concerning election of a Member of County Assembly; the Court lacks jurisdiction

p. 3

Costs

The appellant shall pay the costs of the appeal to the 1st respondent on the one part and to the 2nd and 3rd respondents jointly on the other part.

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.

there is no right of second appeal from an election concerning Membership of County Assembly and that the Court has no jurisdiction to hear a second appeal.
p. 2No second appeal in MCA election matters
Thus, this Court has consistently determined that a second appeal does not lie from the High Court in its appellate jurisdiction concerning the validity of an election of a Member of County Assembly and that the Court lacks jurisdiction to hear such an appeal.
p. 3Restatement of settled jurisdictional position
we allow the two applications and find that the appeal is incompetent and strike it out under Rule 19 (1) of the Court of Appeal (Election Petition) Rules, 2017.
p. 3Final orders - strike out
The appellant shall pay the costs of the appeal to the 1st respondent on the one part and to the 2nd and 3rd respondents jointly on the other part.
p. 3Costs order

Issues in the judgment

#
minor

The judgment refers to Rule 35 of the 'Court of Appeal (Election Appeal Petition) Rules, 2017' in one passage and the 'Court of Appeal (Election Petition) Rules, 2017' in others, an apparent variation in the name of the same instrument.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Okal v Ojuok & 2 others (Election Petition Appeal 39 of 2018) [2019] KECA 977 (KLR)", Case Analysis (2019). Election Petition Appeal (Application) No. of 2018, Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/977/eng@2019-02-14

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