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Supreme CourtAllowedPetition 7 of 2014

Mary Wambui Munene v Peter Gichuki King'ara & 2 others

Supreme Court of Kenya
5 May 2014
Willy MutungaWilly MutungaKalpana RawalK.H. RawalPhilip Kiptoo TunoiP.K. TunoiMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguN.S. Ndungu
11,614 words in judgment
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·~46 min to read original · ~4 min brief

The bottom line

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Supreme Court restored Mary Wambui Munene's win because the election petition was filed after the 28-day constitutional deadline.

What this practically means

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Mary Wambui Munene was declared winner of the Othaya parliamentary seat in March 2013. Her opponent challenged the result, but filed the petition six days late – after the 28-day period set by the Constitution. The law that allowed the extra time was later ruled unconstitutional, and that ruling applied to this case. So the entire challenge was void from the start. The Supreme Court reinstated Munene’s victory and ordered each side to pay its own costs.

Executive summary

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The Supreme Court allowed the appeal by Mary Wambui Munene against the Court of Appeal judgment that had nullified her election as the Member of the National Assembly for Othaya Constituency. The core issue was whether the election petition filed by the 1st respondent in the High Court was a nullity for being filed out of time. The Supreme Court applied its earlier decision in Hassan Ali Joho & Another v. Suleiman Said Shahbal & Others, which declared Section 76(1)(a) of the Elections Act inconsistent with Article 87(2) of the Constitution. Under Article 87(2), election petitions must be filed within 28 days after the declaration of election results by the IEBC. The appellant was declared winner and issued a certificate in Form 38 on 5th March 2013, meaning the petition should have been filed by 2nd April 2013. However, the 1st respondent filed his petition on 8th April 2013, relying on the invalidated Section 76(1)(a) which measured time from publication in the Gazette. The Supreme Court held that the declaration of invalidity of Section 76(1)(a) applied retrospectively to the date of commencement of the Elections Act (2nd December 2011). Consequently, the petition filed on 8th April 2013 was a nullity ab initio, and all proceedings flowing from it, including the Court of Appeal judgment, were also null. The Court restored the IEBC's declaration of the appellant's election. It ordered each party to bear their own costs. The Court clarified that the retrospective effect of its declaration did not apply to cases already finally determined, but only to pending cases.

Questions the Court framed

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

  1. 1.whether these proceedings were a nullity ab initio, having been premised on a Petition filed out of time at the High Court
  2. 2.whether the Court of Appeal in arriving at its decision exceeded its jurisdiction by delving into issues of fact
  3. 3.whether the Court of Appeal misdirected itself when it made its finding on the issue of scrutiny and re-count
  4. 4.when did the vacancy for the Member of the National Assembly for Othaya occur?

Key legal issues

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01

Whether the petition in the High Court was a nullity for being filed out of time under Article 87(2) of the Constitution.

Holding

The petition was a nullity because it was filed on 8th April 2013, six days after the 28-day period from the declaration of results on 5th March 2013, and was based on Section 76(1)(a) of the Elections Act which had been declared inconsistent with Article 87(2) of the Constitution.

Reasoning

The Supreme Court applied its decision in Joho, which declared Section 76(1)(a) of the Elections Act inconsistent with Article 87(2) of the Constitution. The Court held that the declaration of invalidity applied retrospectively to the date of commencement of the Elections Act (2nd December 2011). Since the petition was filed on 8th April 2013, six days after the constitutional deadline of 2nd April 2013, and was founded on the invalidated provision, the entire proceedings were a nullity ab initio. The Court rejected the argument that the appellant had acquiesced, noting that the issue of jurisdiction could be raised at any time. The Court also clarified that the retrospective effect did not apply to cases already finally determined, but this case was still pending.

p. 24
02

Whether the Court of Appeal exceeded its jurisdiction by delving into issues of fact.

Holding

The Court did not determine this issue because it found the proceedings were a nullity ab initio, rendering the question moot.

Reasoning

Having concluded that the entire proceedings before the High Court and Court of Appeal were a nullity because the petition was filed out of time, the Supreme Court held that it was not necessary to consider the other issues raised in the appeal, including whether the Court of Appeal exceeded its jurisdiction by delving into issues of fact.

p. 24

Legal principles established

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  • A declaration that a law is unconstitutional applies from the date that law was enacted, unless the court says otherwise.
  • Any legal proceedings based on a law that violates the Constitution are automatically null and void from the beginning.
  • An election petition must be filed within 28 days of the official declaration of results, not from the date of gazettement.
  • The issue of whether a court has jurisdiction can be raised at any time, even by a party who did not raise it earlier.
  • The retrospective effect of a court ruling does not reopen cases that were already finally decided, but applies to pending cases.

Court orders

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  1. 1.The Petition of Appeal dated 8th April, 2014 is hereby allowed.
  2. 2.The Judgement, consequential Orders and the proceedings before the Court of Appeal in Nyeri Civil Appeal No. 31 of 2013 are hereby declared null.
  3. 3.All the costs in the proceedings before the High Court, the Court of Appeal and this Court, be borne by each party respectively.
  4. 4.For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the seat for the Othaya Member of the National Assembly is hereby restored.

The bench

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

Willy Mutunga
majority

Wrote the judgment

Kalpana Rawal
majority
Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
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 Nyeri
Civil Appeal No. 31 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

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.

The Petition of Appeal dated 8th April, 2014 is hereby allowed.
p. 24 final orders
The Judgement, consequential Orders and the proceedings before the Court of Appeal in Nyeri Civil Appeal No. 31 of 2013 are hereby declared null.
p. 24 final orders
For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the seat for the Othaya Member of the National Assembly is hereby restored.
p. 24 final orders
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, i.e. 2nd December 2011.
p. 24 retrospective effect of declaration of invalidity
If an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court to declare it to be so.
p. 14 nullity of proceedings
But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position.
p. 24 limitation on retrospective effect

Key timeline

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2011-12-02
The Elections Act comes into force, including Section 76(1)(a) which allowed 28 days from gazettement.
2013-03-05
Mary Wambui Munene declared winner of Othaya National Assembly seat by IEBC.
2013-04-02
28-day constitutional deadline for filing election petition expires.
2013-04-08
Peter Gichuki King'ara files election petition, 6 days late, relying on the invalid Section 76(1)(a).
Supreme Court judgment
Supreme Court allows appeal, declares all proceedings null and restores Munene's election.

Practical implications

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For lawyers

Always verify the constitutional validity of the statute you rely on

When filing any case, check whether the law you are using has been challenged or declared unconstitutional. If a statute is later struck down, the declaration may apply retroactively, making your whole case a nullity. In election petitions, the constitutional deadline (28 days from result declaration) overrides any statutory provision that extends it.

For businesses

Monitor legal challenges to laws that affect your operations

If your business depends on a specific statutory provision (e.g., licensing deadlines, tax periods), a court ruling that the provision is unconstitutional could apply retroactively and invalidate actions taken under it. Stay informed about constitutional challenges to laws in your sector, and seek legal advice before relying on a provision that may be vulnerable.

For individuals

File election petitions within 28 days of result declaration

If you plan to challenge an election result, you must file your petition within 28 days from the date the winner is officially declared, not from the date the result is published in the Kenya Gazette. Relying on a law that allows a longer period is risky—that law may be struck down and your petition will be dismissed as filed too late.

Frequently asked questions

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What is the deadline for filing an election petition in Kenya?+

Under Article 87(2) of the Constitution, an election petition must be filed within 28 days after the declaration of the election results by the Independent Electoral and Boundaries Commission. The date of gazettement does not extend this period.

Can a law declared unconstitutional in Kenya apply to past cases?+

Yes. The Supreme Court has ruled that a declaration of invalidity applies from the date the law was enacted, unless the court limits it. This means it can affect pending cases, but not cases that were already finally decided before the ruling.

What happens if an election petition in Kenya is filed out of time?+

The entire proceedings are a nullity from the start. The High Court loses jurisdiction to hear the case, and any judgment from the Court of Appeal or Supreme Court based on that petition is also void. The original election result stands.

Who pays the costs in a Kenyan election petition that is declared a nullity?+

The court may order each party to bear their own costs, as happened in the Mary Wambui Munene case. This is because the nullity arises from a legal error rather than the conduct of the parties, so no one is penalised with the other side’s legal fees.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Wambui Munene v Peter Gichuki King'ara & 2 others", Case Analysis (2014). Petition 7 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/37/eng@2014-05-05

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