Garama v Karisa & 3 others (Election Petition Appeal (Application) 1 of 2023) [2023] KECA 924 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a Magarini Constituency election appeal to proceed, ruling the notice of appeal was filed in time and minor errors were not fatal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's notice of appeal was filed out of time
- 2.Whether the notice of appeal is incompetent on account of being an 'omnibus notice' and on account of introducing an 'unknown party'
- 3.Whether the record of appeal is incompetent on account of omission to include the proceedings of the High Court and the decree, and whether the supplementary record of appeal is properly on record
Key legal issues
#Computation of the seven-day period for filing a notice of appeal in an election petition appeal
The notice of appeal filed on 10th March 2023, following judgment delivered on 3rd March 2023, was filed in time because the day of the decision is excluded in computing the seven days.
The Court of Appeal (Election Petition) Rules, 2017 contain no computation-of-time provision. Rule 4(2) imports the Court of Appeal Rules, 2010 in such gaps, and Section 57 of the Interpretation and General Provisions Act provides that a period of days is exclusive of the day on which the event occurs. Rule 3(a) of the 2010 Rules mirrors this. Applying those provisions, the seven days ran from 4th March 2023 and lapsed on 10th March 2023, the day the notice was filed.
Whether a notice of appeal challenging the 'whole decision' is an invalid omnibus notice under Section 85A of the Elections Act
No defect arises; a notice of appeal may specify that the whole of a judgment is appealed, provided the grounds raised are matters of law.
Section 85A of the Elections Act confines election petition appeals to matters of law. The eleven enumerated grounds - misdirection on the standard of proof, misinterpretation of Articles 81 and 86 of the Constitution and Sections 82 and 83 of the Elections Act, imposition of obligations unknown to law, and determination of unpleaded matters - are matters of law within the parameters set out in Gatirau Peter Munya v Dickson Mwenda Kithinji. The notice also complied with Rule 6(3)(a) by specifying that the whole judgment is challenged.
Whether the record of appeal was incompetent for omitting the proceedings and decree, and whether the supplementary record was filed out of time
The supplementary record of appeal was properly on record under Rule 8(5) because the High Court failed to avail the certified proceedings and decree in time; the supplementary record was filed within seven days of filing the record of appeal.
The appellant deposed, without contradiction, that the High Court did not avail the certified proceedings and decree in time; letters requesting them were on record, and the proceedings were certified on 31st March 2023 and the decree on 3rd April 2023. Rule 8(5) expressly permits a supplementary record within seven days of filing the record where the High Court does not avail the required documents. The supplementary record was filed three days after the record of appeal, which itself was filed within thirty days.
Whether the notice of appeal was fatally defective for naming the appellant as a non-existent 4th respondent
The misdescription was mere inadvertence, not repeated in the record of appeal, and caused no prejudice; it did not invalidate the appeal.
The parties before the High Court were clearly identified: the 1st respondent was the petitioner, the 2nd and 3rd respondents were IEBC and the Returning Officer, and the appellant was the 3rd respondent in the High Court. The reference to Kombe Harrison Garama as 4th respondent in the notice of appeal was inadvertent; the record of appeal correctly names Michael Thoyah Kingi as 4th respondent. No prejudice to the applicant was demonstrated, so the mistake did not oust the Court's jurisdiction.
Legal principles established
#- In computing the seven days prescribed by Rule 6(2) of the Court of Appeal (Election Petition) Rules, 2017 for filing a notice of appeal, the day of delivery of the High Court judgment is excluded, consistent with Section 57 of the Interpretation and General Provisions Act and Rule 3(a) of the Court of Appeal Rules, 2010.
- A notice of appeal expressing an intention to appeal against the whole of a decision is not an defective 'omnibus notice'; it accords with Rule 6(3)(a) which requires the notice to specify whether all or part of the judgment is being appealed.
- Where the High Court does not avail documents required under Rule 8(1), an appellant may file the record of appeal and a supplementary record of appeal within seven days thereafter under Rule 8(5).
- An inadvertent misnaming of a party in a notice of appeal, not repeated in the record of appeal and causing no prejudice, is not a ground for striking out an appeal.
Court orders
#- 1.The application dated 5th April 2023 seeking striking out of the notice of appeal, the supplementary record of appeal and the appeal is dismissed
- 2.Costs of the application awarded to the appellant and to the 2nd and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court at Malindi
- Malindi Election Petition No. E001 of 2022
- Jurisdiction invoked
- Article 87(1) of the Constitution; Section 85A(1)(a) of the Elections Act No. 24 of 2011; Rules 6, 8, 9, 17(2) and 19 of the Court of Appeal (Election Petition) Rules, 2017
Relief refused
#Striking out of the notice of appeal dated 9th March 2023
The notice of appeal was filed within the seven days prescribed by Rule 6(2) as the day of judgment is excluded in computation of time
Striking out or expunging the supplementary record of appeal dated 3rd April 2023
Rule 8(5) permitted filing of a supplementary record where the High Court failed to avail the required documents; the supplementary record was filed within the prescribed period
Striking out of the appeal
None of the jurisdictional defects alleged was made out; the application failed
Costs
The application is dismissed with costs to the appellant and to the 2nd and 3rd respondents.
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.
Based on those provisions we are persuaded that the date on which the judgment of the High Court was delivered, namely, 3rd March 2013 is excluded in computation of the 7 days prescribed in Rule 6(2).
We discern no defect in the notice of appeal on account of the intimation that the appellant “intends to appeal against the whole of the said decision…”.
Consequently, the supplementary record of appeal was filed within the prescribed period. There is, therefore, no merit in this complaint.
All in all, the application fails and is hereby dismissed with costs to the appellant and to the 2nd and 3rd respondents.
Issues in the judgment
#The judgment refers to the High Court judgment as delivered on 3rd March 2023 in the opening paragraphs, but in the computation-of-time analysis refers to '3rd March 2013', an apparent typographical error for 2023.
The replying affidavit passage contains an apparent typographical omission ('the High failed to avail' rather than 'the High Court failed to avail').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Garama v Karisa & 3 others (Election Petition Appeal (Application) 1 of 2023) [2023] KECA 924 (KLR)", Case Analysis (2023). Malindi Election Petition Appeal (application dated 5th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/924/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.