Harriet Kerubo Ongera v Rose Moturi Mwene & 3 others [2019] KECA 979 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear second appeals over County Assembly election results, so the High Court's decision stands as final.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies to the Court of Appeal from a judgment of the High Court in its appellate jurisdiction concerning the validity of the election of a Member of County Assembly
- 2.Whether the Court of Appeal has jurisdiction to entertain Election Petition Appeal No. 43 of 2018, and if not, whether the record of appeal should be struck out
Key legal issues
#Jurisdiction of the Court of Appeal over second appeals in County Assembly election disputes
The Court lacks jurisdiction to entertain an appeal from a High Court decision in its appellate jurisdiction on the validity of election of a Member of County Assembly; such an appeal is incompetent and must be struck out.
Relying on the Five-Judge Bench decision in Mohammed Ali Sheikh v Abdi Wahab Sheikh and prior decisions of the Court (Isaac Oerri Abiri, Hamdia Yaroi Sheikh Nuri, Joel Nyabuto Omwenga), which were all found correctly decided, the Court held that the question had been exhaustively considered and that a full re-examination of the constitutional and statutory framework was unwarranted. Consistently with those authorities, no second appeal lies and the appeal before the Court was struck out.
Whether Article 164(3) of the Constitution permits a further appeal in County Assembly election petitions
The application and interpretation of Article 164(3) has been settled by prior decisions of the Court and does not confer jurisdiction over a second appeal in such matters.
The 1st respondent argued on the application and interpretation of Article 164(3) of the Constitution. The Court declined to re-examine the constitutional and statutory provisions governing the hierarchy of courts in electoral dispute resolution, holding that the issue had been raised and considered in several decisions, and followed the consistent line of authority that the High Court's appellate decision on a County Assembly election is final so far as this Court is concerned.
Legal principles established
#- A second appeal does not lie to the Court of Appeal from a decision of the High Court in its appellate jurisdiction concerning the validity of the election of a Member of County Assembly, and the Court of Appeal has no jurisdiction to entertain such an appeal.
Court orders
#- 1.The application dated 15th September, 2018 is allowed with costs to the applicant against the 1st respondent (Rose Moturi Mwena) only
- 2.Election Petition Appeal No. 43 of 2018 is struck out as incompetent with costs to the IEBC and Harriet Kerubo Ongera (1st and 3rd respondents in the appeal)
- 3.The 2nd and 4th respondents in the appeal who did not participate in the appeal shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- HCC Election Petition Appeal No. 3 of 2018
- Jurisdiction invoked
- Article 164(3) of the Constitution; sections 75A and 85A of the Elections Act; Court of Appeal (Election Petition) Rules, 2017, Rule 19
Relief refused
#The 1st respondent's attempt to sustain Election Petition Appeal No. 43 of 2018 against the High Court judgment
A second appeal does not lie to the Court of Appeal from a High Court decision in its appellate jurisdiction on the validity of election of a Member of County Assembly
Costs
Application allowed with costs to the applicant against the 1st respondent (Rose Moturi Mwena) only; Election Petition Appeal No. 43 of 2018 struck out as incompetent with costs to the IEBC and Harriet Kerubo Ongera (1st and 3rd respondents in the appeal); the 2nd and 4th respondents in the appeal who did not participate shall bear their own costs.
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.
Consistently with the reasoning in the previous decisions of the Court, we find that a second appeal does not lie to this Court and the Court has no jurisdiction to entertain the appeal before the Court.
In the result, the application is allowed with costs to the applicant against the 1 st respondent (Rose Moturi Mwena) only.
Consequently, Election Petition Appeal No. 43 of 2018 is struck out as incompetent with costs to the IEBC and Harriet Kerubo Ongera (1st and 3rd respondents in the appeal).
The 2nd and 4th respondents in the appeal who did not participate in the appeal shall bear their own costs.
Issues in the judgment
#The judgment inconsistently dates the High Court judgment, describing it in the heading as delivered on 10th July, 2018 but in the body as delivered on 10th August, 2018
The 1st respondent's surname is spelled inconsistently ('Mwene' in the title, 'Mwena' in the costs order)
The application is dated 15th September, 2018 but is described as an application to strike out a record of appeal lodged on 10th September, 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harriet Kerubo Ongera v Rose Moturi Mwene & 3 others [2019] KECA 979 (KLR)", Case Analysis (2019). Election Petition Appeal (Application) No. 43 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/979/eng@2019-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.