Maina & 12 others v The United Democratic Alliance Party & 5 others (Election Petition Appeal (Application) E001 of 2023) [2024] KECA 62 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear second appeals in MCA election disputes; the High Court is the final court for those cases.
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 regarding the validity of the election of a Member of the County Assembly
- 2.Whether the respondents' application to strike out the notice of appeal dated 1st September 2023 should be allowed
- 3.Whether the appellants' application for a mandatory injunction compelling the 6th respondent to allow them access to the County Assembly of Uasin Gishu should be granted
Key legal issues
#Whether the Court of Appeal has jurisdiction over a second appeal in an MCA election dispute
It does not. Section 85A of the Elections Act limits appeals to the Court of Appeal to election petitions concerning membership of the National Assembly, Senate or the office of county governor, and omits Members of County Assembly.
Section 75(1A) vests original jurisdiction over MCA election validity in the Resident Magistrate's Court, with an appeal to the High Court on matters of law under Section 75(4). Section 85A does not list MCA elections among appeals lying to the Court of Appeal. Since the right of appeal is purely statutory and cannot be implied, the omission is deliberate and accords with Article 87(1)'s demand for timely settlement of electoral disputes. The Supreme Court and prior Court of Appeal decisions have consistently so held.
Whether the silence of Section 85A regarding MCA elections is discriminatory or unconstitutional
No. The limitation in the number of appeals in electoral disputes is by design and does not infringe constitutional rights.
The appellants argued that the omission of MCA elections from Section 85A was discriminatory. The court relied on the Supreme Court's reasoning in Hamdia Yaroi Shek Nuri, that Parliament's silence meant the High Court was intended to be the last port of call for such petitions, in accord with Article 87 of the Constitution mandating timely settlement of electoral disputes. This Court had earlier held in Hassan Jimal Abdi that the limitations were by design and did not infringe any party's constitutional rights.
The consequence of a notice of appeal filed in a court without jurisdiction
A notice of appeal filed before a court without jurisdiction is a nullity ab initio and amenable to being set aside ex debito justitiae; here it was properly struck out under Rule 17(1) of the Court of Appeal (Election Petition) Rules on the ground that no appeal lies.
Jurisdiction is everything; without it a court has no power to make one more step. Having determined that the Court of Appeal lacks jurisdiction over second appeals in MCA election disputes, the court found the notice of appeal was filed before a court devoid of jurisdiction. Rule 17(1) permits a person affected by an election petition appeal to apply to strike out a notice of appeal on the ground that no appeal lies, which limb the respondents invoked.
Whether the mandatory injunction application could be entertained
No. Having found no jurisdiction over the second appeal, the court declined to consider the injunction application and dismissed it with costs.
The appellants sought a mandatory injunction compelling the 6th respondent to allow them access to the County Assembly of Uasin Gishu pending determination of the appeal. Since the threshold determination was that the court lacked jurisdiction to entertain the second appeal, the court would not belabour the injunction application. Jurisdiction must be acquired before judgment is given; a court exercising jurisdiction it does not possess amounts to nothing.
Legal principles established
#- The Court of Appeal has no jurisdiction to hear and determine a second appeal concerning the validity of the election of a Member of the County Assembly; such disputes are heard by the Magistrates Court with an appeal lying only to the High Court, which is the final appellate court.
- A right of appeal must be expressly conferred by statute and cannot be implied or inferred.
Court orders
#- 1.The 1st and 3rd respondents' application dated 6th September 2023 seeking to strike out the notice of appeal dated 1st September 2023 is allowed with costs
- 2.The 1st, 2nd, 3rd, 6th, 8th, 9th, 10th, 11th & 12th appellants' application dated 6th September 2023 seeking a mandatory injunction is dismissed with costs to the 1st and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 85A of the Elections Act read with Article 164(3)(a) of the Constitution and Section 3 of the Appellate Jurisdiction Act; Rule 17(1) of the Court of Appeal (Election Petition) Rules, 2017
Relief refused
#Mandatory injunction compelling the 6th respondent to comply with Rule 18(1) of the Court of Appeal (Election Petition) Rules and allow the appellants to access the County Assembly of Uasin Gishu and perform their duties as members
The court lacked jurisdiction to entertain a second appeal and therefore declined to consider the application for a mandatory injunction
Retention of the notice of appeal dated 1st September 2023
The notice of appeal was filed before a court devoid of jurisdiction, as Section 85A of the Elections Act does not provide for a second appeal in MCA election disputes
Costs
The 1st and 3rd respondents' application allowed with costs; the appellants' application dismissed with costs to the 1st 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.
It follows therefore that the Court of Appeal does not have jurisdiction to hear and determine issues regarding the validity of the election of a Member of the County Assembly. This is the preserve of the Magistrates Court and an appeal is to be taken to the High Court.
It is trite that jurisdiction is everything, and it is what gives a court or a tribunal the power, authority, and legitimacy to entertain any matter before it.
The right to appeal is not a part of common law tradition. It solely depends on the specific words stated in a statute.
In the result, the 1st, 2nd, 3rd, 6th, 8th, 9th, 10th, 11th, & 12th appellants’ application dated 6th September 2023 is dismissed with costs to the 1st and 3rd respondents.
Having determined that this court lacks the requisite jurisdiction to hear a second appeal regarding the dispute at hand, we find that the 1st and 3rd respondents’ application dated 6th September 2023 is meritorious, and the same is allowed with costs.
Issues in the judgment
#The case number and neutral citation of the appeal/applications are not stated anywhere in the judgment copy
The judgment refers to Hamdia Yaroi Shek Nuri v Faith Tumaini Kombe & 2 Others as a Supreme Court decision but introduces a quoted passage with 'the Supreme Court stated that:' yet the quoted text describes the Court of Appeal's reasoning in the third person, creating ambiguity about which court's words are being quoted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina & 12 others v The United Democratic Alliance Party & 5 others (Election Petition Appeal (Application) E001 of 2023) [2024] KECA 62 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/62/eng@2024-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.