United Democratic Movement & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition Appeal E017 of 2023) [2023] KECA 1338 (KLR)
The bottom line
#The Court of Appeal confirmed there is no second appeal in Kenyan county assembly election disputes, so UDM's appeal was struck out and a nominated MCA lost her seat.
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 Court of Appeal has jurisdiction to hear a second appeal from the High Court in an election petition concerning the election of a member of a county assembly
- 2.Whether a dispute arising from nomination through party lists is distinguishable from an election of a member of a county assembly elected directly
- 3.Whether the High Court's orders against Sokorey Maalim Isaakow, who did not participate in the proceedings before the Election Court, offend her right to be heard
Key legal issues
#Jurisdiction of the Court of Appeal over second appeals in county assembly election petitions
The Court has no jurisdiction to hear a second appeal from the High Court in an election petition concerning the election of a member of a county assembly; section 85A of the Elections Act permits appeals only for National Assembly, Senate and county governor elections, and section 75(4) limits county assembly election appeals to one appeal to the High Court on matters of law
A plain reading of Article 164(3)(a) would suggest jurisdiction, but election petitions are sui generis and governed by the Elections Act. Section 75(1A) vests county assembly election disputes in the Resident Magistrates' Court with one appeal to the High Court on matters of law only; section 85A expressly allows Court of Appeal appeals only for National Assembly, Senate and governor elections. The omission of a further appeal is deliberate, preserving finality and expedition under Article 87(1) of the Constitution.
Whether party-list nomination disputes fall outside county assembly election appeal restrictions
No. Article 90 of the Constitution treats allocation of party-list seats as elections, so party-list nomination disputes are election disputes subject to the same appellate restrictions
The UDM Party attempted to separate party-list nomination appeals from direct MCA election appeals. The Court rejected the distinction because Article 90 expressly designates party-list allocation as elections, meaning such disputes must be adjudicated under the same constitutional and statutory framework, including the limitation on appeals.
Whether the right to be heard of Sokorey Maalim Isaakow, who was not a party below, entitles her to retain her seat
Although her right to a fair hearing under Articles 50 and 25(c) was engaged by adverse orders made against her without participation, the Court could not allow her to retain a seat obtained under an invalid gazette notice, as that would perpetuate an illegality
The Court acknowledged that adverse orders were made against Sokorey without her having been heard before the Election Court. However, publication of the party lists in a newspaper and the Gazette gave her notice of the error in her nomination category, and she could have sought correction. Sympathy for her position could not override the illegality in the gazettement.
Legal principles established
#- The Court of Appeal has no jurisdiction to hear or entertain a second appeal from an election petition involving the election of a member of a county assembly; such disputes are confined to the Resident Magistrates' Court with one appeal to the High Court on matters of law only
- A dispute emanating from a nomination exercise through party lists is an election dispute for purposes of electoral dispute resolution
- Election proceedings are sui generis and residual or inherent jurisdiction arguments do not confer a second appeal in county assembly election disputes
- The Supreme Court's residual jurisdiction decisions in arbitration matters are distinguishable in election matters
Court orders
#- 1.The preliminary objection by Abdow Bishar Maalim, supported by Abdiwelly Haji Bukura, is upheld
- 2.The notice of appeal and the record of appeal filed by the UDM Party are struck out
- 3.Abdow Bishar Maalim and Abdiwelly Haji Bukura are awarded costs of the preliminary objection against the UDM Party and the IEBC, capped at Kshs. 200,000
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garissa
- Garissa Election Petition (Appeal) No E005 of 2023 (consolidated with Nos E002 and E004 of 2023) - ruling dated August 17, 2023
- Jurisdiction invoked
- Preliminary objection on jurisdiction under Article 164(3) of the Constitution read with sections 75 and 85A of the Elections Act; appeal competence challenged under section 75(1A) & (4), 85A of the Elections Act and rule 35 of the Election (Parliamentary and County Election) Petition Rules, 2017
Relief refused
#Hearing and determination of the UDM Party's appeal on its merits
The Court lacks jurisdiction to hear a second appeal from an election petition concerning the election of a member of a county assembly
Relief for Sokorey Maalim Isaakow on the basis of her non-participation in the proceedings below
Although her right to be heard was engaged, the Court could not allow her to retain a seat procured under an invalid gazette notice, as that would perpetuate an illegality
Costs
Abdow Bishar Maalim and Abdiwelly Haji Bukura shall have costs of the preliminary objection as against the UDM Party and the IEBC, capped at Kshs. 200,000
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.
In conclusion, we find and hold that this Court has no jurisdiction to hear or entertain a second appeal from an election petition involving the election of a member of a county assembly.
We hereby strike out the notice of appeal and the record of appeal filed by the UDM Party.
In the result, we uphold the preliminary objection by Abdow Bishar Maalim, which was supported by Abdiwelly Haji Bukura, both of whom shall have costs of the preliminary objection as against the UDM Party and the IEBC. We shall cap the costs at Kshs.200,000.
Article 90 of the Constitution expressly uses the term “Elections” to refer to the process of allocation of party lists seats in parliament and county assemblies.
the Constitution as well as the Elections Act do not contemplate second appeals to this Court in respect of such elections.
By operation of the provisions of Article 50 and Article 25 (c) of the Constitution, the right to be heard was a minimum prerequisite before any adverse action could be taken against Sokorey Maalim Isaakow.
Issues in the judgment
#The judgment is internally inconsistent about the date of the High Court judgment, stating August 7, 2023 in the narrative while the opening paragraph and parties' descriptions refer to a ruling delivered on August 17, 2023
The judgment inconsistently renders the gazette notice number, referring in the dispositive orders to 'Special Kenya Gazette No 1012' whereas elsewhere it is 'Gazette Notice No 10712 of September 9, 2022'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "United Democratic Movement & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition Appeal E017 of 2023) [2023] KECA 1338 (KLR)", Case Analysis (2023). Election Petition Appeal (as raised on preliminary objection) from Garissa Election Petition (Appeal) No E005 of 2023 (consolidated with E002 and E004 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1338/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.