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Supreme CourtAllowedPetition 9 of 2014

Lisamula v Independent Electoral and Boundaries Commission & 2 others (Petition 9 of 2014)

Supreme Court of Kenya
16 July 2014
16,520 words in judgment
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AI-assisted case brief
·~66 min to read original · ~4 min brief

The bottom line

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Election petitions must be filed within 28 days of result declaration, not gazettement.

What this practically means

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The Supreme Court ruled that election petitions must be filed within 28 days from when the Returning Officer declares the results (Form 38), not from when they are published in the Kenya Gazette. In this case, the petition was filed 35 days after declaration, making it invalid. All court decisions based on that petition were void. The seat for Shinyalu Constituency was returned to the original winner declared by IEBC on 5th March 2013.

Executive summary

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The Supreme Court allowed the appeal by Anami Silverse Lisamula, the declared winner of the Shinyalu Constituency National Assembly seat in the 2013 elections. The Court held that the election petition filed in the High Court by the 3rd respondent was filed 35 days after the declaration of results, outside the 28-day period prescribed by Article 87(2) of the Constitution. Applying its precedents in Hassan Ali Joho and Mary Wambui Munene, the Court found that the 28-day period runs from the issuance of Form 38 by the Returning Officer, not from gazettement, and that the declaration of invalidity of section 76(1)(a) of the Elections Act applies retrospectively from the Act's commencement. Consequently, the High Court lacked jurisdiction, and all proceedings at the High Court and Court of Appeal were nullities ab initio. The Court therefore annulled the determinations of both lower courts, quashed the certificate issued by the Court of Appeal, and ordered that the status of the National Assembly seat reverts to the status quo ante as declared by IEBC on 5th March 2013. Each party was ordered to bear their own costs at all levels. The Court did not determine the other grounds of appeal, including the issue of whether the 3rd respondent's advocate lacked a valid practising certificate, as it had no jurisdiction to entertain a matter that was void ab initio. Two concurring opinions were delivered: Deputy Chief Justice Rawal expounded on the Supreme Court's distinct jurisdiction under Article 163(4)(a) to settle constitutional controversies, while Justice Ojwang argued that the Supreme Court's broader mandate means it should not automatically 'down its tools' upon finding a jurisdictional defect, though both agreed with the outcome.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the petition at the High Court was filed out of time, and whether the proceedings at the High Court and the Court of Appeal were a nullity ab initio for being in contravention of article 87(1) of the Constitution.
  2. 2.whether the proceedings at the Court of Appeal were a nullity for being conducted by an ‘advocate’ without a valid practising certificate.

Key legal issues

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01

Whether the High Court petition was filed out of time under Article 87(2) of the Constitution, rendering the proceedings a nullity.

Holding

The petition was filed 35 days after declaration of results, outside the 28-day constitutional limit, making the proceedings a nullity ab initio.

Reasoning

The Court applied its precedents in Hassan Ali Joho and Mary Wambui Munene, which established that the 28-day period runs from the issuance of Form 38 by the Returning Officer, not from gazettement. The Court held that the declaration of unconstitutionality of section 76(1)(a) of the Elections Act applies retrospectively from the Act's commencement. Since the petition was filed outside this period, the High Court lacked jurisdiction, and all subsequent proceedings were void.

02

Whether the Court of Appeal proceedings were a nullity because the 3rd Respondent's advocate lacked a valid practising certificate.

Holding

The Court did not determine this issue because it had already found the entire proceedings a nullity on the jurisdictional ground, rendering the practising certificate question moot.

Reasoning

Having found that the High Court petition was filed out of time and all proceedings were a nullity, the Court held it had no jurisdiction to consider any other issues, including the practising certificate question. The Court stated that 'this Court cannot entertain a matter that is null and void ab initio' and therefore its 'pen rests'.

Legal principles established

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  • The 28-day deadline for election petitions runs from the Returning Officer's declaration of results, not from gazettement.
  • A petition filed after 28 days is a nullity from the start, and all court proceedings based on it are void.
  • The Supreme Court's declaration that a law is unconstitutional applies from the date that law began, not from the judgment date.
  • When a court lacks jurisdiction over a case, it cannot decide any other issues in that case.
  • The High Court and Court of Appeal lose jurisdiction if an election petition is filed too late.

Court orders

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  1. 1.The Petition of Appeal dated 16th April, 2014 is hereby allowed.
  2. 2.The determinations made by both the High Court and the Court of Appeal are hereby annulled.
  3. 3.The Certificate issued by the Court of Appeal in Kisumu Civil Appeal No 51 of 2013 is hereby declared a nullity and is quashed.
  4. 4.The status of the National Assembly seat for Shinyalu Constituency reverts to the status quo ante, as declared by the Independent Electoral and Boundaries Commission on 5th March, 2013.
  5. 5.The parties shall bear their own costs at the High Court, Court of Appeal and the Supreme Court, respectively
  6. 6.These Orders shall forthwith, be served upon the Speaker of the National Assembly.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
concurring

Wrote the judgment

The Deputy Chief Justice wrote a separate concurring opinion expounding on the Supreme Court's distinct jurisdiction under Article 163(4)(a) and its duty to settle constitutional controversies even where lower courts lacked jurisdiction, but agreed that the issues here had been settled in prior decisions.

The special nature of the Supreme Court under article 163(4)(a) of the Constitution ordains that its mandate to settle legal issues of constitutional controversy, remains alive.p. 29
majority
majority
concurring

Wrote the judgment

Justice Ojwang wrote a separate concurring opinion arguing that the Supreme Court's jurisdiction is broader than the 'Lillian S' principle suggests, and that the Court should not automatically down its tools upon finding a jurisdictional defect, but agreed with the outcome on the facts.

This Supreme Court has a larger profile than that which had been attributed to Courts of the past, by the Court of Appeal's decision in 'Lillian S'.p. 33
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Kisumu
Civil Appeal No 51 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we find that the petition in the High Court, which was filed 35 days after the date of final declaration of results by the Returning Officer, fell outside the 28 days prescribed by the Constitution; and thus, all the proceedings ensuing from such declaration of results, at the High Court and the Court of Appeal, were a nullity.
p. 28 Jurisdiction - Time limits for election petitions
The parties shall bear their own costs at the High Court, Court of Appeal and the Supreme Court, respectively
p. 34 Costs order
from a review of the principles in the Joho Case as regards the settlement of electoral disputes, we are convinced that for the benefit of certainty and consistency, the declaration of invalidity must apply from the date of commencement of the Elections Act, ie 2nd December 2011.
p. 27 Retrospective effect of declaration of invalidity
The status of the National Assembly seat for Shinyalu Constituency reverts to the status quo ante, as declared by the Independent Electoral and Boundaries Commission on 5th March, 2013.
p. 34 Restoration of status quo ante

Key timeline

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2013-03-05
IEBC declared Anami Silverse Lisamula winner of Shinyalu Constituency National Assembly seat.
2013-04-09
Petition filed in High Court challenging the election result (35 days after declaration).
2014-04-16
Supreme Court allowed appeal, annulled lower court decisions, and restored IEBC's original declaration.

Practical implications

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For lawyers

Count 28 days from Form 38

When filing election petitions, calculate the 28-day deadline strictly from the date the Returning Officer issues Form 38, not from gazettement. The Supreme Court confirmed this rule applies retrospectively to the Elections Act's commencement in 2011. Missing this deadline means the entire case is void, and you cannot fix it later.

For businesses

Election challenges must be swift

If you are involved in an election dispute as a candidate or party, ensure any legal challenge is filed within 28 days of the official result declaration at the polling station. Waiting for the Kenya Gazette publication will be too late. The court will not extend this constitutional deadline, and any delay invalidates the entire case.

For individuals

Know your 28-day election deadline

If you want to challenge an election result in Kenya, you have exactly 28 days from when the Returning Officer announces the winner at the tallying centre. Do not wait for the official gazette notice. File your petition immediately. If you miss this deadline, the court cannot hear your case at all.

Frequently asked questions

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How many days do I have to file an election petition in Kenya?+

You have 28 days from the date the Returning Officer declares the election results (Form 38). This deadline is in the Constitution and cannot be extended. The count starts from the declaration at the tallying centre, not from when results are published in the Kenya Gazette.

What happens if an election petition is filed late in Kenya?+

The petition becomes a nullity from the start. All court proceedings based on it are void, and the courts lose jurisdiction to hear the case. The Supreme Court confirmed this in Anami Silverse Lisamula v IEBC, where a petition filed 35 days after declaration was thrown out entirely.

Does the 28-day election petition deadline start from gazettement in Kenya?+

No. The 28-day period starts from when the Returning Officer issues the certificate in Form 38, not from gazettement. The Supreme Court clarified this in the Anami case, applying its earlier decisions in Hassan Ali Joho and Mary Wambui Munene.

Can a court hear other issues if an election petition is filed late in Kenya?+

No. Once the court finds the petition was filed outside the 28-day deadline, it cannot decide any other issues in the case. The entire matter becomes void, and the court must stop. The Supreme Court said its 'pen rests' in such situations.

Cite this brief

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Cite this brief

Caselaw, "Lisamula v Independent Electoral and Boundaries Commission & 2 others (Petition 9 of 2014)", Case Analysis (2014). Petition 9 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/23/eng@2014-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.