Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 1 of 2021

National Rainbow Coalition Kenya (NARC Kenya) v Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Parties)

Supreme Court of Kenya
17 February 2022
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
7,202 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

#

Supreme Court cannot hear appeals that don't involve interpreting the Constitution.

What this practically means

#

NARC Kenya challenged IEBC's allocation of gender top-up seats in county assemblies after the 2017 election. Courts said this was an election dispute, not a constitutional issue, so it must go to the election court. The Supreme Court agreed it lacked jurisdiction because the Court of Appeal never interpreted the Constitution. The case was dismissed.

Executive summary

#
The appellant, NARC Kenya, challenged the IEBC's allocation of gender top-up seats in six county assemblies following the 2017 general election, alleging discrimination and violation of constitutional rights. The High Court struck out the petition on a preliminary objection, holding it lacked jurisdiction because the dispute concerned the validity of nominations and should have been brought as an election petition under section 75(1A) of the Elections Act. The Court of Appeal affirmed this decision. On appeal to the Supreme Court under Article 163(4)(a), the respondent raised a preliminary objection that the Supreme Court lacked jurisdiction because the appeal did not involve the interpretation or application of the Constitution. The Supreme Court sustained the preliminary objection, finding that the Court of Appeal's decision was based on the Elections Act and not on constitutional interpretation. The court also held that even on the merits, the amended petition did not convert the election dispute into a constitutional petition; the true character of the cause remained a challenge to the validity of nominations, which could only be brought in the election court. The court emphasized that constitutional remedies are reserved for true constitutional breaches, not for disputes with alternative statutory remedies, and that Article 159(2)(d) is not a cure-all for procedural non-compliance. The petition was dismissed with costs to the respondent and the 1st interested party.

Questions the Court framed

#

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

  1. 1.whether we have jurisdiction to entertain the petition
  2. 2.whether the amended petition presented before the High Court converted the original cause of action from what appeared to be a challenge on the election of members of the concerned county assemblies to a constitutional petition, alleging specific violation of the petitioner’s members’ constitutional rights

Key legal issues

#
01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the Court of Appeal did not interpret or apply the Constitution.

Holding

The Supreme Court lacks jurisdiction because the Court of Appeal's decision was based on the Elections Act and the preliminary objection, not on constitutional interpretation or application.

Reasoning

The Court of Appeal affirmed the High Court's finding that it lacked jurisdiction to hear the petition because it was an election dispute under section 75(1A) of the Elections Act. The Court of Appeal did not engage in any interpretation or application of the Constitution. The Supreme Court held that for an appeal under Article 163(4)(a), the appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter. Since the Court of Appeal's decision was based on statutory provisions and not the Constitution, the Supreme Court had no jurisdiction.

p. 14
02

Whether an amended petition challenging nominations to county assemblies can be converted from an election dispute into a constitutional petition by amending the prayers.

Holding

No. The amendment did not change the essential character of the dispute, which remained a challenge to the validity of nominations, and therefore could only be brought in the election court.

Reasoning

The original petition sought an order to recall nominations. The amended petition replaced 'recall' with an order of mandamus to compel allocation of seats. The court found no real distinction, as both prayers sought to disturb the gazetted nominations. The declaratory reliefs were consequentially linked to the mandamus order. The court held that the true character of the cause was an election petition questioning the validity of nominations, and such a challenge could only be commenced in the election court under section 75(1A) of the Elections Act.

p. 16
03

Whether Article 159(2)(d) of the Constitution can cure the failure to invoke the correct jurisdictional provision when appealing to the Supreme Court.

Holding

No. Article 159(2)(d) is not a cure-all for failure to comply with legal requirements, including the need to invoke the correct constitutional or statutory provision that clothes the court with jurisdiction.

Reasoning

The court cited its previous decision in Daniel Kimani Njehia v Francis Mwangi Kimani & another, where it was categorical that a litigant should invoke the correct constitutional or statutory provision, and an omission in this regard is not a mere procedural technicality to be cured under Article 159 of the Constitution. The court emphasized that Article 159(2)(d) was never intended to oust the obligations of litigants to comply with the law or procedural imperatives.

p. 18

Legal principles established

#
  • An appeal to the Supreme Court under Article 163(4)(a) must challenge the Court of Appeal's interpretation or application of the Constitution.
  • A dispute over validity of nominations after gazettement is an election dispute, not a constitutional petition.
  • Constitutional remedies are only for true constitutional breaches, not for errors that can be resolved by other legal means.
  • Amending a petition to change prayers does not change the essential character of the dispute.
  • Article 159(2)(d) is not a cure-all for failing to invoke the correct jurisdictional provision.

Court orders

#
  1. 1.The preliminary objection is sustained and, on merit, we dismiss the Petition dated 15th January 2021.
  2. 2.We award costs to the respondent and the 1st interested party.

The bench

#

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

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

#

Setting aside the judgment of the Court of Appeal and granting the reliefs sought in the High Court petition

The petition was dismissed for lack of jurisdiction and on merit as it was an election dispute disguised as a constitutional petition.

p. 18

Costs

We award costs to the respondent and the 1st interested party.

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 preliminary objection is sustained and, on merit, we dismiss the Petition dated 15th January 2021.
p. 18 Final orders dismissing the petition
an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such interpretation.
p. 14 Jurisdiction of the Supreme Court under Article 163(4)(a)
the true character of the appellant’s cause, despite being disguised as a constitutional petition, was in fact an election petition, questioning the validity of nomination of elected members of the County Assemblies who had been gazetted; and that such a challenge could only be commenced in the election court, in this case, under section 75(1A) of the Elections Act.
p. 16 Characterisation of election disputes
constitutional remedies are sacrosanct and transcendental in importance to be invoked in all and conceivable situations. They are reserved only for true and verifiable breaches of the Constitution and not for correction of errors which can be resolved by alternative means of redress provided in statute.
p. 17 Limits of constitutional remedies
Article 159(2)(d) of the Constitution has repeatedly been invoked as a cure-all, a magic bullet even where, as here, it is inapplicable. It was never the intention of the framers to oust the obligations of litigants and parties to comply with the law or procedural imperatives as they seek justice from the courts.
p. 18 Limits of Article 159(2)(d)
We award costs to the respondent and the 1st interested party.
p. 18 Costs order

Key timeline

#
2017
General election held; IEBC allocates gender top-up seats in six county assemblies.
2021-01-15
NARC Kenya files petition challenging the allocation.
2021
High Court strikes out petition on preliminary objection for lack of jurisdiction.
2021
Court of Appeal affirms High Court decision.
2022
Supreme Court dismisses appeal for lack of jurisdiction under Article 163(4)(a).

Practical implications

#
For lawyers

Draft Supreme Court appeals carefully

When appealing under Article 163(4)(a), ensure the Court of Appeal actually interpreted the Constitution. If the lower courts dismissed on jurisdictional grounds without constitutional analysis, the Supreme Court will lack jurisdiction. Also, do not rely on Article 159(2)(d) to cure jurisdictional defects.

For businesses

Know election dispute procedures

If your business is involved in political nominations or electoral disputes, challenges to gazetted nominations must go to the election court, not as constitutional petitions. This affects timelines and strategies. Filing in the wrong court wastes time and resources.

For individuals

Choose the right court for election complaints

If you believe a nomination to a county assembly was invalid, you must file an election petition in the election court, not a constitutional petition. The Supreme Court only hears constitutional interpretation appeals, not every case with constitutional claims.

Frequently asked questions

#
Can I appeal to the Supreme Court in Kenya if my case involves constitutional rights?+

Not automatically. The Supreme Court only hears appeals if the Court of Appeal interpreted or applied the Constitution in its decision. If the lower courts dismissed your case on other grounds, the Supreme Court may lack jurisdiction.

What is the difference between an election petition and a constitutional petition in Kenya?+

An election petition challenges the validity of an election or nomination and must be filed in the election court within strict timelines. A constitutional petition alleges violation of constitutional rights. Courts look at the true nature of the dispute, not just the label.

Can I amend my petition to change it from an election dispute to a constitutional case in Kenya?+

No, according to this case. Amending the prayers does not change the essential character of the dispute. If the core issue is about nomination validity, it remains an election dispute regardless of how you frame it.

Does Article 159(2)(d) of the Kenyan Constitution allow courts to ignore procedural mistakes?+

No. Article 159(2)(d) is not a cure-all. It does not excuse failure to invoke the correct jurisdictional provision. You must still comply with legal requirements and file in the right court.

Later judgments citing this (10)

#

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

Cite this brief

#

Cite this brief

Caselaw, "National Rainbow Coalition Kenya (NARC Kenya) v Independent Electoral & Boundaries Commission; Tharaka Nithi County Assembly & 5 others (Interested Parties)", Case Analysis (2022). Petition 1 of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/6/eng@2022-02-17

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