Okal v Ojuok & 2 others (Election Petition Appeal 39 of 2018) [2019] KECA 977 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain a second appeal concerning the election of a Member of County Assembly
- 2.Whether the appeal should be struck out on that ground
Key legal issues
#Jurisdiction of the Court of Appeal to hear a second appeal on election of a Member of County Assembly
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.
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.
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.The two applications are allowed
- 2.The appeal is found incompetent and struck out under Rule 19(1) of the Court of Appeal (Election Petition) Rules, 2017
- 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.
- 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
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.
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.
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.
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.
Issues in the judgment
#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.