Kinyanjui & 5 others v Kalunga & 12 others (Election Petition Appeal E002 of 2023 & Election Petition Appeal (Application) E002 of 2023 (Consolidated)) [2024] KECA 317 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear second appeals in County Assembly election petitions, striking out an appeal over Kwale MCA nominations.
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 hear an appeal from the High Court in an election petition concerning the election of a member of a County Assembly
- 2.Whether the 1st respondent's application to strike out the appeal is merited
Key legal issues
#Whether the Court of Appeal has jurisdiction over second appeals in County Assembly election petitions
The Court has no jurisdiction; section 85A of the Elections Act provides for appeals only concerning membership of the National Assembly, Senate or the office of county governor, and section 75(4) makes the High Court the final appellate court for County Assembly election petitions
Article 164(3)(a) is the constitutional foundation of the Court's jurisdiction, but it does not confer jurisdiction over all appeals from the High Court. Section 85A of the Elections Act expressly limits election petition appeals to this Court to matters concerning the National Assembly, Senate and county governor, on matters of law only. Section 75(1A) vests first-instance jurisdiction over County Assembly election validity in the magistrate's court, with a single appeal on matters of law to the High Court under section 75(4). The absence of any provision for a second appeal means the right does not exist. This position has been consistently adopted by this Court and affirmed by the Supreme Court, by which this Court is bound under Article 163(7).
Whether the Court may depart from its own and the Supreme Court's prior decisions interpreting section 85A
No; the doctrine of stare decisis, both vertical and horizontal, binds the Court, and no exceptional circumstances such as conflicting precedent or per incuriam decisions were shown to warrant departure
The appellants invited the Court to reinterpret section 85A contrary to settled precedent. The Court reiterated that it is bound by decisions of courts superior to it, and that decisions of concurrent jurisdiction are only persuasive. Horizontally, departure is permissible only where prior decisions conflict, are inconsistent, or were per incuriam; none of those circumstances existed. Of decisive importance, the Supreme Court in Hamdia Yaroi Shek Nuri affirmed that no second appeal lies to the Court of Appeal in such matters, and under Article 163(7) this Court, like all other courts, is bound by that pronouncement.
Legal principles established
#- There is no right of appeal to the Court of Appeal from a High Court decision in an election petition concerning the validity of the election of a member of a County Assembly; the High Court is the final appellate forum on such questions
- A right of appeal is a creature of statute; legislative omission to provide for a right of appeal means the right does not exist
- The Court of Appeal is bound by the Supreme Court's affirmation that no second appeal lies from the High Court in County Assembly election petitions, pursuant to Article 163(7) of the Constitution
Court orders
#- 1.The Notice of motion dated 16th October 2023 being Election Petition Appeal (Application) No. E002 of 2023 is merited and is hereby allowed
- 2.The appeal be and is hereby struck out
- 3.Costs are awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Jurisdiction challenged under section 85A of the Elections Act and section 75(4) of the Elections Act; Court found no appeal lies to it under Article 164(3)(a) of the Constitution in respect of members of County Assembly elections
Relief refused
#The appellants' request that the Court assume jurisdiction over the appeal and determine the grounds raised against the High Court judgment
The Court lacks jurisdiction to hear a second appeal from the High Court in an election petition concerning a member of a County Assembly; the right of appeal is a creature of statute and none was provided
Costs
Costs are awarded to the 1st respondent.
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 sum, the appeal be and is hereby struck out for want of jurisdiction
The Notice of motion dated 16th October 2023 being Election Petition Appeal (Application) No. E002 of 2023 is merited and is hereby allowed
And, having found as we have that this Court has no jurisdiction to hear and determine the appeal, we hereby down our tools and proceed no further to hear and determine the grounds raised in the appeal.
Our reading of the provisions of section 75 and 85A of the Elections Act yields the interpretation that there is no provision of a second appeal to this Court concerning the election of a member of a county assembly.
Conceptually, the right of appeal being a statutory right, failure to provide the right implies the right does not exist.
In the absence of an express statutory provision, no second appeal lies to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of county assembly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanjui & 5 others v Kalunga & 12 others (Election Petition Appeal E002 of 2023 & Election Petition Appeal (Application) E002 of 2023 (Consolidated)) [2024] KECA 317 (KLR)", Case Analysis (2024). Election Petition Appeal No. E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/317/eng@2024-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.