Loitiptip v Independent Electoral and Boundaries Commission & 2 others
The bottom line
#Supreme Court halts fresh Lamu Senate election pending appeal on scrutiny issue.
What this practically means
#The Supreme Court has temporarily stopped the order that annulled the Lamu Senator election and called for a new vote. The Court found that the appeal raises valid constitutional questions, including whether the Court of Appeal should have sent the case back to the High Court for a recount instead of canceling the election. Until the Supreme Court hears the full appeal, the IEBC cannot declare the seat vacant or hold a new election.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal, having found that the application for scrutiny and recount should have been allowed, ought to have remitted the matter back to the High Court with an order for scrutiny and recount
- 2.Whether in failing to refer the matter back to the High Court with an order for scrutiny, the Court of Appeal acted ultra vires its jurisdiction
- 3.Whether in its determination, the Court of Appeal erroneously took into account evidence that was subject of affidavits that had been struck out by the High Court in Ruling(s) on interlocutory applications, which Rulings were not appealed
Key legal issues
#Whether the Supreme Court has jurisdiction to hear an appeal from the Court of Appeal in an election petition under Article 163(4)(a) of the Constitution.
The Court implicitly affirmed jurisdiction by proceeding to consider the application on its merits, rejecting the 3rd Respondent's contention that the appeal did not meet the jurisdictional test.
The 3rd Respondent argued that the appeal did not meet the jurisdictional test of Article 163(4)(a), hence the Court lacked jurisdiction. However, the Court considered the application and found that the appeal prima facie raises arguable constitutional issues warranting consideration, thereby exercising jurisdiction.
Whether the Court of Appeal, having found that scrutiny and recount should have been allowed, ought to have remitted the matter back to the High Court.
The Court found this to be an arguable constitutional issue warranting consideration in the main appeal.
The Applicant submitted that the Court of Appeal, having found that scrutiny should have been granted, should have referred the matter back to the High Court for that purpose, rather than nullifying the election. The Court identified this as one of the arguable issues on the face of the appeal.
Whether the appeal would be rendered nugatory if stay orders are not granted.
The Court was satisfied that the appeal would be rendered nugatory if the orders sought were not granted.
The Court applied the principle from Munya 1 that an applicant must demonstrate that the appeal would be rendered nugatory if stay is not granted. Given that the Court of Appeal had nullified the election and directed fresh elections, the Court found that without a stay, the appeal would be rendered nugatory.
Legal principles established
#- An applicant for stay of execution in the Supreme Court must show the appeal raises arguable constitutional issues.
- The applicant must also prove the appeal will be rendered useless if stay is not granted.
- The Court of Appeal may act beyond its powers if it fails to remit a case for scrutiny instead of nullifying an election.
- A court cannot rely on evidence from affidavits that were previously struck out by a lower court.
- The Supreme Court has jurisdiction under Article 163(4)(a) to hear appeals from election petitions when constitutional issues arise.
Court orders
#- 1.The Notice of Motion Application dated 17th July 2018 is hereby allowed.
- 2.The execution of the judgement of the Court of Appeal delivered on 12th July, 2018 in Malindi Election Petition Appeal No. 2 of 2018 and the resultant orders be and are hereby stayed pending the hearing and determination of the appeal.
- 3.A conservatory order do and is hereby issued restraining the 1st Respondent, Independent Electoral and Boundaries Commission, from certifying the senatorial seat of Lamu County vacant pending the hearing and determination of the appeal.
- 4.A conservatory order do and is hereby issued restraining the Independent Electoral and Boundaries Commission from announcing or conducting senatorial elections in Lamu County pending the hearing and determination of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Malindi Election Petition Appeal No. 2 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
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.
The application has met the threshold for grant of stay on the basis of the principles set by this Court in the Munya 1 decision
the appeal prima facie raises arguable constitutional issues that warrant consideration by this Court
That we are satisfied that if the orders sought are not granted, the appeal will be rendered nugatory.
The execution of the judgement of the Court of Appeal delivered on 12th July, 2018 in Malindi Election Petition Appeal No. 2 of 2018 and the resultant orders be and are hereby stayed pending the hearing and determination of the appeal.
A conservatory order do and is hereby issued restraining the 1st Respondent, Independent Electoral and Boundaries Commission, from certifying the senatorial seat of Lamu County vacant pending the hearing and determination of the appeal.
Costs of this application to abide the appeal.
Key timeline
#Practical implications
#Key jurisdictional test for stay
When seeking stay pending appeal in the Supreme Court under Article 163(4)(a), you must demonstrate arguable constitutional issues and that the appeal will be nugatory without stay. Cite Munya 1. This ruling affirms that the threshold applies even in election cases, and that the Court will reject jurisdictional challenges if the appeal raises prima facie constitutional questions.
Litigation risk in election outcomes
Protecting your elected position
If your election is overturned on appeal, you can ask the Supreme Court to halt that order while you challenge it. You need to show that the appeal raises serious legal issues and that a new election would make your appeal pointless. This case succeeded because the Court of Appeal might have wrongly skipped a step by not ordering a recount first.
Frequently asked questions
#What does the Supreme Court ruling in Loitiptip v IEBC mean for the Lamu Senator election in Kenya?+
The Supreme Court temporarily stopped the Court of Appeal's order to nullify the Lamu Senator election and hold a new vote. The IEBC cannot certify the seat vacant or conduct fresh elections until the Supreme Court hears the full appeal.
Can the Supreme Court stop an election nullification in Kenya pending appeal?+
Yes, as this case shows. The Supreme Court can grant stay of execution if the applicant shows the appeal raises arguable constitutional issues and the appeal would be meaningless without the stay. Here, the Court found such issues existed.
What is the significance of scrutiny and recount in Kenyan election petitions?+
Scrutiny means the court re-examines ballots and election materials to verify results. In this case, the Supreme Court questioned whether the Court of Appeal should have ordered scrutiny instead of immediately nullifying the election. This is a key constitutional issue now awaiting full determination.
How long does a stay of execution last in Kenyan Supreme Court election cases?+
The stay remains in effect until the Supreme Court hears and decides the main appeal. In this case, the orders restraining IEBC from fresh elections continue until the appeal is determined. There is no fixed expiry date; it depends on the court's schedule.
Cite this brief
#Cite this brief
Caselaw, "Loitiptip v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2018). Civil Application 21 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/55/eng@2018-08-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.