Weekly Newsletter 013/2019

Weekly Newsletter 013/2019



Kenya Law

Weekly Newsletter



Constituting elements of the defence of deception in section 8 (5) of the Sexual Offences Act ought to be read disjunctively as opposed to conjunctively
Eliud Waweru Wambui v Republic
Criminal Appeal 102 of 2016
Court of Appeal at Nairobi
R N Nambuye, D K Musinga & P O Kiage, JJA
March 22, 2019
Reported by Ian Kiptoo
Download the Decision
Jurisdiction-jurisdiction of the Court of Appeal-matters of law-where an accused stated that the first Appellate Court did not subject evidence on record to fresh scrutiny, analysis and re-evaluation-whether a second appellate court could refer to facts tendered in evidence before a trial court in its determination-Criminal Procedure Code, section 361 (a)
Criminal Law-sexual offences-defilement-ingredients of the offence of defilement-age of the complainant-standard of proof-whether a complainant’s age in a charge of defilement in section 8 (1) (4) of the Sexual Offences Act was an essential ingredient that needed to be proved beyond reasonable doubt-Sexual Offences Act, section 8 (1) (4)
Evidence Law-documentary evidence-secondary evidence-Photostat copy of an alleged birth certificate-where secondary evidence sought to prove the contents of primary evidence-where Photostat copy was not certified-whether a Photostat copy of an alleged birth certificate that had not been certified was conclusive proof of the age of a complainant in a charge of defilement-Evidence Act, sections 64 and 66
Statutes-interpretation of statutes-interpretation of section 8 (5) of the Sexual Offences Act-elements to the defence of deception-deception and reasonable belief that a complainant was over the age of 18 years-where conjunctive terms were used-whether the constituting elements of the defence of deception in section 8 (5) of the Sexual Offences Act, in a charge of defilement, ought to be read disjunctively as opposed to conjunctively-whether the age of sexual consent ought to be reviewed from 18 years to 16 years in light of human development and social change
Words and Phrases-deceive-definition of-deliberately cause (someone) to believe something that is not true or (of a thing) given a mistaken impression to-Concise Oxford English Dictionary, 12th Edition 2011
Brief Facts:
The appellant was arrested and arraigned before the Chief Magistrate’s Court at Thika on a charge of defilement contrary to section 8 (1) (4), and an alternative charge of indecent act contrary to section 11 (1) of the Sexual Offences Act, No. 3 of 2006 (Act). He was found guilty and sentenced to 15 years’ imprisonment. The appellant relied on the grounds that; the first Appellate Court erred in law and fact by failing to notice that essential ingredients/ of the offence as charged were not proved; that the first Appellate Court erred in law by failing to notice that the appellant reasonably believed that the complainant had granted her consent and that she had capacity to grant the said consent; and that he believed she was of full age and capacity to contract a marriage.
Issues:
  1. Whether a second appellate court could refer to facts tendered in evidence before a trial court in its determination.
  2. Whether a complainant’s age in a charge of defilement in section 8 (1) (4) of the Sexual Offences Act was an essential ingredient that needed to be proved beyond reasonable doubt.
  3. Whether a Photostat copy of an alleged birth certificate that had not been certified was conclusive proof of the age of a complainant in a charge of defilement.
  4. Whether the constituting elements of the defence of deception in section 8 (5) of the Sexual Offences Act, in a charge of defilement, ought to be read disjunctively as opposed to conjunctively.
  5. Whether the age of sexual consent ought to be reviewed from 18 years to 16 years in light of human development and social change.

Relevant Provisions of the Law
Sexual Offences Act, No. 3 of 2006
Section 8
“(5) It is a defence to a charge under this section if-
(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”
Held:
  1. As the appeal was a second appeal, the Court’s jurisdiction was confined to a consideration of questions of law only by dint of section 361(a) of the Criminal Procedure Code. The memorandum of appeal framed raised questions of law. The Court’s interaction with those grounds could of course involve, as in the complaint that the Trial Court did not re-evaluate the evidence, a reference to the facts as they emerged from the evidence that was tendered before the Trial Court. Such reference was not the same as hearing an appeal on a matter of fact which the Court was statutorily debarred to do.
  2. The appellant’s complaint that the first Appellate Court did not subject the evidence to fresh scrutiny, analysis and re-evaluation was not an idle one. A first appeal always proceeded by way of re-hearing based on the evidence on record and an appellant was therefore entitled to expect that the first Appellate Court would go beyond a mere rehashing of what was on record or a repetition of the findings of the Trial Court.
  3. The High Court was required to, and had to be seen to have consciously and deliberately subjected the entire evidence to thorough scrutiny so as to arrive at its own independent conclusions on the factual issues in contention, and to determine on its own, the guilt or otherwise of the appellant. The only limitation to its task being a remembrance that it was without the advantage, enjoyed by the Trial Court, of seeing and observing the witnesses as they testified, for which it had to make due allowance.
  4. The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence could not be gainsaid. It was not in doubt that the age of the victim was an essential ingredient of the offence of defilement and formed an important part of the charge because the prescribed sentence was dependent on the age of the victim.
  5. A Photostat copy of the alleged birth certificate produced, which copy was not certified as required by section 66 of the Evidence Act when permitting the production of secondary evidence if primary evidence, which was the document itself, was not produced for the inspection of the Court and the contents of the document were sought to be proved by secondary evidence, was not a document that could be relied on in proof of the complainant’s age. Further, the document itself purported to have been issued before the birth of the complainant, evidence of which it purported to be, was a logical impossibility. Therefore, the document as was, was of no probative value.
  6. There was no age assessment as such that was done on the complainant whereas the P3 Form that was produced indicated 17 years as the , namely the complainant. The other evidence of age was that of the complainant herself which, other than being hearsay in character, was no more illuminating. The complainant stated that on November 14, 2009, she got married to the appellant and she was about 17 years having been born on October 3, 1991. Simple arithmetic showed that as at that date she would have been 18 years and one month old. She further stated that she conceived in May 2009 which would place her age at 17 years and 6 months at the time but, one could not speak competently on her date of birth as she could not have witnessed it and the only document that was produced of the same was of no probative value.
  7. The totality of the evidence on age was that it did not possess the consistency and certainty that would have proved the exact date of the complainant’s birth beyond reasonable doubt. Therefore, had the Trial Court gone into an analysis of the evidence with the thoroughness that was required of it, it would probably have arrived at a different conclusion. In failing to engage in that exhaustive re-evaluation, it fell into error and the lingering doubts had to be resolved in favour of the complainant.
  8. The conduct of the police raised doubts as to the bona fides of the prosecution which was made worse by the admitted demand by the complainant’s father, in a meeting at the Chief’s office, attended by two elders no less, for the sum of Kshs 80,000 from the appellant who, incidentally, had been his tenant. During cross examination PW2 stated that the Kshs 80,000 “” he had used on the complainant and not dowry, but the critical point was the admission that had it been paid the matter would have rested.
  9. The picture that emerged was of a father righteously indignant that his daughter had been seduced and put in the family way, and who would have the culprit prosecuted unless he would pay some kind of compensation. That too, raised questions as to whether the prosecution was for the proper purpose of enforcing the law or settling a score. At any rate, the effect was to whittle the reprobate value of the father’s evidence and to lend credence to the appellant’s contention that both the father and chief did know that the girl was of age.
  10. A witness in a criminal case upon whose evidence it was proposed to rely should not create an impression in the mind of the Court that he was not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicated that he was a person of doubtful integrity, and therefore an unreliable witness which made it unsafe to accept his evidence. The evidence of PW2, properly evaluated, would have been in the category of an unreliable witness.
  11. Section 8 (5) of the Sexual Offences Act stated that it was a defence to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years. Subsection (5) was a curious provision in so far as it was set in as opposed to terms which would seem to be more logical. Once a person had actually been deceived into believing a certain state of things, it added little to require that his belief be reasonably held.
  12. A reading of section 8 (6) of the Sexual Offences Act seemed to add a qualification to subsection (5) (b) that separated it from the belief proceeding from deception in subsection (5) (a). Therefore, the elements constituting the defence should be read disjunctively if the two sub-sections were to make sense. Further, it stood to reason that a person was more likely to be deceived into believing that a child was over the age of 18 years if the said child was in the age bracket of 16 to 18 years old, and that the closer to 18 years the child was, the more likely the deception, and the more likely the belief that he or she was over the age of 18 years.
  13. The burden of proving that deception or belief fell upon the appellant, but the burden was on a balance of probabilities to be assessed on the basis of the appellant’s subjective view of the facts. Thus, whereas indeed the complainant was still in school in Form 4, that alone would not rule out a reasonable belief that she would be over 18 years old. It was also germane to point out that a child need not deceive by way of actively telling a lie that she was over the age of 18 years. Had the two Lower Courts properly directed their minds to the appellant’s defence and the totality of the circumstances of the case, they would in all likelihood have arrived at a different conclusion on it. It was a non-direction that they did not do so, rendering the conviction unsafe.
  14. “We need to add as we dispose of this appeal that the Act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalize only sexual conduct with children of a younger age than 16 years. We think it is rather unrealistic to assume that teenagers and maturing adults in the sense employed by the English House of Lords in Gillick v West Norfolk And Wisbech Area Health Authority [1985] 3 ALL ER 402, do not engage in, and often seek sexual activity with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process, and not a series of disjointed leaps.”
  15. “Where to draw the line for what is elsewhere referred to as statutory rape is a matter that calls for serious and open discussion. In England, for instance, only sex with persons less than the age of 16, which is the age of consent, is criminalized and even then the sentences are much less stiff at a maximum of 2 years for children between 14 to 16 years of age. The same goes for a great many other jurisdictions. A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation.”
Appeal allowed, conviction quashed and sentence set aside. The appellant would be set at liberty unless otherwise lawfully held.
Kenya Law
Case Updates Issue 013/2019
Case Summaries

CONSTITUTIONAL LAW Applicable guidelines to determine who between the Independent Electoral Boundaries Commission, Political Parties Disputes Tribunal and election court has the jurisdiction to hear and determine pre-electoral disputes including those relating to, or arising from nominations

Sammy Ndung’u Waity v Independent Electoral & Boundaries
Commission and 3 others
Petition 33 of 2018
Supreme Court of Kenya
D K Maraga, CJ and P; M K Ibrahim, J B Ojwang, S C Wanjala, N Ndungu, SCJJ
February 8, 2019
Reported by Ian Kiptoo

Download the Decision

Constitutional Law-jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-matters of constitutional interpretation and application-claim that the appeal involved matters of interpretation and application of the law-whether general references to constitutional provisions or claim of alleged violation of rights in a memorandum of appeal clothed the Supreme Court with jurisdiction under article 164 (3) (a) of the Constitution-Constitution of Kenya, 2010, article 164 (3) (a)
Constitutional Law-jurisdiction-jurisdiction of the IEBC, PPDT-jurisdiction of the Election Court-jurisdiction of the IEBC and PPDT vis-à-vis the Election Court-pre-election disputes-applicable guidelines in determining jurisdiction-who between the Independent Electoral and Boundaries Commission (IEBC), Political Parties Dispute Tribunal (PPDT) and the election Court had the jurisdiction to hear and determine pre-electoral disputes including those relating to, or arising from nominations-what were the applicable guidelines to determine who between the IEBC, PPDT and election court had the jurisdiction to hear and determine pre-electoral disputes including those relating to, or arising from nominations-Constitution of Kenya, 2010, articles 88 (4) (e), 105 (1)(a) and 165 (3) &(6); Elections Act, section 74 (1)
Electoral Law - electoral disputes - pre-electoral disputes-disputes relating to or arising from nominations-dispute resolution mechanisms-where a petitioner approached an election court in a dispute that arose from nomination-whether a petitioner could approach an election court in a pre-electoral dispute, including those relating to or arising from nominations, without first exhausting the available dispute resolution mechanisms-Constitution of Kenya, 2010, articles 88 (4) (e), 105 (1)(a) and 165 (3) &(6); Elections Act, section 74 (1)

Brief Facts:
The petition of appeal before the Court sought to challenge the decision of the Court of Appeal. The Appellate Court in its judgment dismissed the petitioner’s appeal, and in so doing, upheld the decision of the trial Court in Election Petition No. 2 of 2017. The grounds of the appeal were that the Court of Appeal erred in law: in finding that the 2nd respondent’s nomination to run as an independent candidate was not in violation of article 82(1)(b)(d) and (2), article 85, article 88(4)(k) of the Constitution of Kenya, 2010 (Constitution) as read with section 33 of the Elections Act; in refusing to consider the issue of nomination, the Court violated the constitutional doctrine of stare decisis established under article 163(7) and contradicted the decision made in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR
On the other hand, the respondents contended that the jurisdiction of the Court had not been properly invoked and that the grounds of appeal did not point out to the finding of the Court of Appeal, in which the Appellate Court’s interpretation of the law was contrary to the provisions of the Constitution, or that the findings were illegal or perverse.

Issues:

  1. Whether general references to constitutional provisions or claim of alleged violation of rights in a memorandum of appeal clothed the Supreme Court with jurisdiction under article 164 (3) (a) of the Constitution.
  2. Who between the Independent Electoral and Boundaries Commission (IEBC), Political Parties Dispute Tribunal (PPDT) and the election Court had the jurisdiction to hear and determine pre-electoral disputes including those relating to, or arising from nominations?
  3. What were the applicable guidelines to determine who between the IEBC, PPDT and election court had the jurisdiction to hear and determine pre-electoral disputes including those relating to, or arising from nominations?
  4. Whether a petitioner could approach an election court in a pre-electoral dispute, including those relating to or arising from nominations, without first exhausting the available dispute resolution mechanisms. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 88 (4) (e)
  (e) “the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”

Article 105 (1)
“The High Court shall hear and determine any question whether
 (a) a person has been validly elected as a member of Parliament.”

Elections Act
Section 74 (1)
“Pursuant to Article 88 (4) (e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”

Held:

  1. Article 163(4) (a) of the Constitution of Kenya, 2010 (Constitution) provided that appeals lay from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution. An appeal to the Supreme Court would not be sustainable unless it was demonstrated that it raised cogent issues of constitutional controversy. The appellant had to be faulting the Court of Appeal’s interpretation or application of the Constitution that informed the impugned Judgment.
  2. It was not enough for the appellant to evolve grievances in the memorandum of appeal, in which he alleged violations of his rights, simply because he disagreed with the decision of the Court of Appeal. Nor would general references to Constitutional Provisions suffice, to bring an appeal within the ambit of article 164 (3) (a), if such provisions were not a basis of contestation at the Appellate Court. Therefore, the petition of appeal did not meet the threshold for admission under article 163 (4) (a) of the Constitution, save on one issue.
  3. Whether an election court had jurisdiction to determine pre-election disputes had fallen for determination with recurring frequency in the superior Courts. Two schools of thought had emerged as the Courts grappled with the critical issue. On the one hand, there was the Divestiture School that held the notion that the establishment of other organs by the Constitution to address pre-election disputes, including those relating to nominations, divested an election Court of jurisdiction to determine the same.
  4. Article 88 (4) (e) of the Constitution provided that the IEBC would inter alia, be responsible for the settlement of electoral  disputes, relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results. In the same vein, The Political Parties Disputes Tribunal was also vested with the mandate to determine and settle pre-election disputes.
  5. The Preservative Schoolon the other hand maintained that an election, being a process and not an event, meant the same continued, until the declaration of results. That being the case, an election Court had to satisfy itself that the election was at all times conducted in accordance with the tenets of the Constitution. The Court could not undertake such a task unless its jurisdiction including the power to look into pre-election disputes was preserved.
  6. None of the positions could be treated lightly, as each was anchored upon the best traditions of judicial inquiry. But as admirable as both of them were the certainty of a recurrence of the same question, already so painstakingly navigated by the superior Courts was such that, in the interests of certainty, the Court had to pronounce itself on the same with finality. In order to undertake that task from an informed position, a review of the decisions that had been handed down by the High Court and Court of Appeal, concerning the two schools of thought, had to be undertaken.
  7. Section 74 (1) of the Elections Act was a derivative of article 88 (4)(e) of the Constitution. Together, those provisions constituted the normative architecture for the resolution of pre-election disputes including those arising from nominations. That framework for dispute resolution came into existence after the promulgation of the 2010 Constitution. Prior to that, the jurisdiction to determine pre-election disputes lay with the High Court sitting as an Election Court.
  8. The Constitution of Kenya, 2010 and the resultant electoral law deliberately set out to delimit the institutional competencies for the settlement of all electoral disputes. In that regard, it donated jurisdictional authority to different judicial and quasi- judicial organs. The Supreme Court was vested with original and exclusive jurisdiction to determine petitions relating to the election of a President. The Court of Appeal had jurisdiction to determine appeals from the High Court on points of law, the High Court had original jurisdiction to determine petitions relating to the election of Governor, Senator, Member of Parliament, and Women Representative. The Resident Magistrates Court had jurisdiction to determine petitions relating to the election of Member of County Assembly with appeals there from to the High Court on points of law only.
  9. Coming to pre-election disputes, including disputes relating to, or arising from nominations, the Constitution was clear that they were to be resolved by the IEBC (through its Committee on Dispute Resolution as provided for by section 12 of the enabling Act) or where applicable, by the Political Parties Disputes Tribunal. Where the Constitution or any other law established an organ, with a clear mandate for the resolution of a given genre of disputes, no other body could lawfully usurp such power, nor could it append such organ from the pedestal of execution of its mandate. To hold otherwise would be to render the constitutional provision inoperable, a territory into which no judicial tribunal, however daring, would dare to fly.
  10. That an election was a process, a continuum, which began from the registration of voters right up to the declaration of results, was a truism. But that fact was not in itself capable of conferring jurisdiction on an Election Court to inquire into the entire electoral process. While an election was a process, in the context of dispute resolution, it had to be a structured process. That was why the framers of the Constitution were mindful of the need for a clear roadmap for the resolution of disputes along that continuum. Hence, those disputes that arose before an election were to be resolved by the organs established for that purpose.
  11. Disputes that arose, during and after the elections, were reserved for the Election Court. Indeed, the Election Court itself came into real existence, after the elections proper. It was for that reason that the Constitution restricted every organ to its operational sphere. Hence, the IEBC was only responsible for the settlement of electoral disputes, including disputes relating to or arising from nominationsbut excluding election petitions and disputes subsequent to the declaration of election results. The latter were definitely a preserve of the Election Court, which meant that the former, were a preserve of the IEBC or the PPDT as the case may be.
  12. Disputes relating to nominations or eligibility went to the root of an election. However, that fact did not confer jurisdiction on an Election Court to determine “nomination related” disputes, precisely because, “those disputes” were reserved for the IEBC by article 88 (4) (e) of the Constitution. An Election Court ought not to trample upon the electoral process like a colossus in the face of clear and unambiguous provisions of the Constitution regarding its jurisdiction.
  13. Where the Constitution or the law, consciously conferred jurisdiction to resolve a dispute, on an organ other than a court of law, it was imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complaint at the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that had to never be allowed to fester in the administration of justice.
  14. Each of the schools of thought was borne out of the best traditions of judicial inquiry, and none could be dismissed lightly. Such traditions for example required courts of law to interpret the Constitution holistically and purposively. They were also a reminder that the constitution was a living charter, which was always speaking, and in interpreting any of its provisions, a court of law had to keep in mind that, the constitution could not subvert itself. Towards that end, every constitutional provision supported the other, and none could be read so as to render another inoperable.
  15. It was in that regard that the preservative school maintained that while the IEBC had an undoubted mandate to resolve pre-election disputes, including those relating to and arising from nominations, an election court nonetheless, retained the jurisdiction to look into similar disputes. The proponents of that argument relied on article 105 (1) of the Constitution which in their view mandated the High Court to determine any question whether a person had been validly elected. It was their argument that since the validity of an election could at the end of the day turn on the question as to whether a person was qualified to vie in the first place, an election court could not disregard such a question. However, what was not clear was given the provisions of article 88 (4) (e) when such jurisdiction arose and when it ended.
  16. The conflict could not be resolved by either, out-rightly discounting one school of thought or wholly embracing the other. What was critical was the need to harmonize those well-reasoned opinions so as to give effect to both articles 88(4) (e), and 105 (1) (a) of the Constitution as read with section 75 (1) of the Elections Act. Doing so would be to stay faithful to the edict that a constitution had to be interpreted purposively and holistically.
  17. It was undeniable that the mandate of resolving pre-election disputes
    as provided for in article 88 (4) (e) of the Constitution lay with the IEBC. It was also true that the main issue for determining the validity of an election could turn on whether a person, ought to have been nominated in the first place. The implication in such a situation was that an election court retained a jurisdictional residuum from which it could draw to determine the said question in certain exceptional circumstances.
  18. The twin approach of:
    1. recognizing the mandate of the IEBC or any other organ such as the PPDT, of resolving pre-election disputes, including those relating to or arising from nominations, whether such disputes revolved around the qualification of a candidate or otherwise; and
    2. ensuring that an election court or the judicial process for that matter was not helpless when faced with a critical factor to determine the validity of an election;

    ensured that article 88 (4) (e) of the Constitution was not rendered inoperable while at the same time preserving the efficacy and functionality of an election court under article 105 of the Constitution.

  19. To achieve that noble objective, the following guiding principles were issued:
    1. All pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT as the case could be in the first instance;
    2. where a pre-election dispute had been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of the Constitution, such dispute would not be a ground in a petition to the election Court;
    3. where the IEBC or PPDT had resolved a pre-election dispute, any aggrieved party could appeal the decision to the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of the Constitution. The High Court would hear and determine the dispute before the elections and in accordance with the Constitutional timelines;
    4. where a person knew or ought to have known of the facts forming the basis of a pre-election dispute and chose through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute would not be a ground in a petition to the election Court;
    5. the action or inaction above would not prevent a person from presenting the dispute for resolution to the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of the Constitution, even after the determination of an election petition; and
    6. in determining the validity of an election under article 105 of the Constitution or section 75 (1) of the Elections Act, an election court could look into a pre-election dispute if it determined that such dispute went to the root of the election and that the petitioner was not aware or could not have been aware of the facts forming the basis of that dispute before the election.
  20. The only dispute between the parties in the instant case arose out of the nominations of the Jubilee Party. That dispute was litigated right from the Party’s own dispute resolution mechanism up-to the High Court sitting as a judicial review Court. The question as to the validity of the 2nd respondent’s independent candidature only arose in Election Petition No 2 of 2017, filed in the High Court challenging the declaration of the former as the Governor Elect for Laikipia County on August 11, 2017. The issue was neither canvassed at the IEBC or the PPDT.
  21. The fact that the 2nd respondent had decided to contest the ensuing election as an independent candidate, was definitely known to the petitioner, since it was the basis of the preliminary objection in Election Petition No 10 of 2017. The petitioner having been the Chief Agent for the Jubilee Party for Laikipia East Constituency knew all along or ought to have known that the 2nd respondent had quit the party and would be contesting the ensuing election as an independent candidate. With that knowledge, he chose not to challenge the validity of the independent candidature at the appropriate forum.
  22. The appellant/petitioner should have pursued the available dispute resolution mechanisms in accordance with the Constitution and applicable Statutes instead of originating his grievance at the Election Court.
  23. As per D K MARAGA, CJ and P (Concurring)

  24. The High Court erred in declining jurisdiction to determine the issue and the Court of Appeal equally erred in affirming High Court on that point.
  25. IEBC had unquestionable jurisdiction under article 88(4)(e) to determine pre-election nomination disputes. It had exclusive jurisdiction to determine with finality, subject to appeal or judicial review, all intra-party nomination disputes. However, a holistic, and as required by article 259, harmonized interpretation of articles 81, 85, 86, 88, 99, 105, 137, 140 and 193 of the Constitution read together with sections 75 and 83 of the Elections Act left doubt that the election Courts also had jurisdiction to determine pre-election nomination disputes which went into the root of an election, especially those that IEBC had not determined on merit like the one giving rise to the appeal.
  26. The matters which went into the root of election were pre-requisites spelt out in the Constitution including a degree from a university recognized in Kenya as the minimum academic qualification for election as a County Governor as prescribed by articles 180(2) and 193(1)(b) read together with section 22(2) of the Elections Act; and being a registered voter, nominated by a political party or as an independent candidate, was of sound mind and was not an un-discharged bankrupt as required by article 99 of the Constitution.
  27. Whether the 2nd respondent had ceased to be a member of a political party for a period of three months preceding the date of the election in question as required by article 85(a) as read with section 33(1) of the Elections Act. Being a constitutional requirement was a matter that went into the root of the Laikipia County gubernatorial election. As such, the High Court, as the Election Court, had jurisdiction to entertain it.
  28. Even if the High Court assumed jurisdiction and entertained it, it would have dismissed the ground for the simple reason that the 2nd respondent, having resigned from membership of Jubilee Party on May 8, 2017, had ceased to be a member of a political party for a period of at least three months prior to the August 8, 2017 general election.

Appeal dismissed.
Declaration of the result of the election by the IEBC in respect of Governor for Laikipia County upheld. The petitioner/appellant would bear the costs of the Appeal.

JURISDICTION Supreme Court affirms the declared results for the gubernatorial elections for Homa Bay County held on August 8, 2017.

Cyprian Awiti & another v Independent Electoral & Boundaries Commission & 2 others
Petition 17 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu, I Lenaola, SCJJ
February 7, 2019
Reported by Beryl Ikamari & Mathenge Mukundi

Download the Decision

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-matters of constitutional interpretation and application-where a Supreme Court petition raised matters of constitutional interpretation and application relating to articles 86(a) and 88 (4) of the Constitution-whether the Supreme Court had jurisdiction to hear and determine the petition.
Electoral Law-scrutiny and recount-probative value of scrutiny and recount-scrutiny report disclosing evidence of electoral irregularities-claim that the trial Court and Appellate Court overlooked a scrutiny report, in making findings that alleged electoral irregularities affected the outcome of an election, and thereby violated the right to a fair hearing-whether the Supreme Court had jurisdiction to consider the scrutiny report which was overlooked by the trial Court and the Appellate Court.
Evidence Law-documentary evidence-statutory forms used to declare the results of an election and other election material-documentary evidence that was legally within the custody of the Independent Electoral and Boundaries Commission-whether such documentary evidence would be admissible if it was tendered by persons other than the Independent Electoral and Boundaries Commission.
Jurisdiction-jurisdiction of the Court of Appeal-election petition appeals-jurisdiction limited to matters of law only-matters that would constitute matters of law-matters relating to whether conclusions of the trial Court were supported by evidence and whether the trial Court disregarded relevant evidence when it overlooked a scrutiny report in making its findings-whether such matters could be considered by the Court of Appeal-Elections Act No 24 of 2011, section 85A.
Civil Practice and Procedure-costs-award of costs-setting aside an award of costs on appeal-considerations of the Court in awarding costs-whether the Supreme Court would interfere with an award of costs made by the Superior Courts.

Brief facts:
The appellants appealed to the Supreme Court seeking to reverse the Appellate Court’s decision that affirmed the annulment of the gubernatorial election of Homa Bay County. In that election, the appellants declared as the duly elected governor and deputy governor respectively.
At the High Court, the 3rd and 4th respondents’ filed an election petition in they challenged the conduct of the gubernatorial elections. They alleged that the gubernatorial elections were tainted with irregularities, illegalities, and malpractices and infringements of the provisions of the Constitution and the electoral law. At the trial Court the 3rd and 4th respondents made two applications (on September 5, 2017 and September 6, 2017 respectively): one for the Independent Electoral and Boundaries Commission to produce the originals of Forms 32A, 37A, 37B and 37C relating to the Homa Bay County gubernatorial election which the trial Court dismissed; the other(which lay at the center of the appeal that there be a scrutiny of votes cast in all, or in randomly selected polling stations; the trial Court allowed for partial scrutiny and recount for 91 polling stations from all the eight constituency in the Homa Bay County.
The partial scrutiny and recount was duly conducted under the superintendence of that Court’s Deputy Registrar, who duly compiled a report and filed it in the trial Court, on January 24, 2018.
The High Court held that the gubernatorial elections in Homa Bay County were not conducted in strict compliance with the Constitution and the applicable electoral laws. The trial Court invoked electoral irregularities as the basis for annulling the election in question. In its finding that there were electoral irregularities, the High Court made no reference to the scrutiny and recount report.
The appellants were aggrieved by the High Court’s decision and made a petition of appeal to the Court of Appeal. The Court of Appeal faulted the High Court’s decision for failing to mention, consider and evaluate the scrutiny and recount report. Despite the Appellate Court finding that the trial Court erred in law for failure to incorporate the scrutiny and recount report in arriving in its judgment, it termed that a question of facts, concerning which it lacked jurisdiction. The Court of Appeal went ahead and upheld the High Court judgment.
The appellants further appealed to the Supreme Court against the Court of Appeal decision. At the Supreme Court, the appellants contended that the Court of Appeal found that the trial Court erred in law for failing to mention, consider and evaluate the scrutiny and recount report. They said that if the trial Court had considered and evaluated the scrutiny and recount report, it would have arrived at a different judgment and that failure to consider the report amounted to violation of the right of fair hearing.

Issues:

  1. Whether the Supreme Court had jurisdiction to hear the matter as one that raised issues of constitutional interpretation and application.
  2. Whether the Supreme had the jurisdiction to hear and determine questions of facts or questions of law that both the trial Court and Appellant Court failed, ignored or neglected to consider, evaluate and admit into evidence.
  3. Whether the Court of Appeal failed to exercise its jurisdiction, when it declined to consider the scrutiny and recount report on the basis that it concerned a matter of facts.
  4. In an election petition, what was the place of a scrutiny and recount report duly prepared and compiled under the Court’s directions?
  5. Whether the failure by the Superior Courts to consider a scrutiny report was a failure to consider material evidence which occasioned a violation of the appellant's right to a fair hearing.
  6. Whether admission of evidence of statutory forms used to declare election results from parties other than the Independent Electoral and Boundaries Commission which was mandated to keep the official forms, was a violation of article 88(4) of the Constitution.
  7. Whether the Court of Appeal had the jurisdiction to delve into evidential matters that the trial Court failed to consider.
  8. When would the Supreme Court interfere with costs awarded by a Superior Court? Read More...

Held:

  1. The appeal was clearly related to the interpretation and application of the Constitution, particularly, the interpretation of article 86(a) of the Constitution and provisions that guaranteed a fair trial and the dispensation of principles of justice. So, the matters raised in the election petition appeal properly lay to the Supreme Court, within the terms of article 163(4) (a) of the Constitution.
  2. Section 20 and 21 of the Supreme Court Act, allowed the Supreme Court, in the interests of justice, to consider whether the trial Court’s conclusions that the alleged electoral irregularities had affected the election results, carried validity, and warranted the annulment of the election.
  3. The scrutiny question, insofar as it touched upon the integrity of the electoral process, and the political rights of parties provided for in article 38 of the Constitution, was a question on the interpretation and application of the Constitution which the Supreme Court had jurisdiction to entertain. An appeal based upon the question of verifiability of an election, and upon the terms of article 86 (a) of the Constitution, verily invoked the Supreme Court’s jurisdiction under article 163(4) (a) of the Constitution.
  4. The record was abundantly clear, that the trial Court decision was made on the basis that the Homa Bay County gubernatorial election had been vitiated by irregularities, even though the most crucial evidence in that regard, was a scrutiny report which had been overlooked. The trial Court’s decision could not be sustained in law, especially as it betokened an unfair trial, in which the requirements of the Constitution had been overlooked. A determination so floppily based; one not resting upon the critical evidence, and one not according the parties fair hearing could not be sustained. The Appellate Court erred as a matter of law, in sustaining such a decision. The Appellate Court had overlooked the substantial legal dimensions of findings affecting constitutional rights, without considering the supporting evidence and its decision was based on bare claims originating from speculation.
  5. Upon close examination of the pillars of the trial Court decision, and the Appellate Court’s perspective on the same, it was evident that a systematic application of established precedent, and of the governing principles of the Constitution and the law, would led to the inference that both of the superior courts were in error, and their decisions could not stand.
  6. The treatment of the scrutiny report by the two superior courts, was a departure from both law and principle. It had been established that once a trial Court orders the conduct of scrutiny, the resulting findings were as good as the findings of the Court itself and that the Court had to take such findings into account. That position was, indeed, duly recognized by the Appellate Court, when it held that the trial Court had committed an error of law.
  7. The conclusions of the trial Court were not supported by any evidence from the scrutiny report which had been prepared in compliance with its orders. Hardly any reasonable tribunal would have arrived at the trial Court’s conclusion, which was not based on irregularities that were disclosed in the scrutiny report.
  8. In the absence of the findings on the scrutiny report, the trial Court had no reference point in judging the magnitude of the impact of any electoral irregularity that could have affected the electoral outcome. Thus, there was no basis in law for the orders of annulment.
  9. The purpose and essence of scrutiny and recount was that:-
    1. it enabled the Court to ascertain whether the alleged irregularities or breaches of the law complained of, were valid;
    2. it enabled the Court to ascertain the valid votes cast in favour of each candidate;
    3. it was not meant to unearth new evidence to sustain a petition; its purpose was to enable the Court to verify the allegations made by the parties — allegations which had to be founded on formal pleadings;
    4. it was one of the devices that enabled the Court to ascertain whether an election had been conducted in accordance with constitutional principles, and to establish that, indeed, the declared result was a reflection of the electorate’s will at the time of voting; and
    5. it was a mechanism of proportionate design, for rectifying election results, and declaring the valid outcome — a process which obviates the necessity to annul the entire election outcome, or, alternatively, the validation of an erroneous electoral outcome.
  10. The disregard of the scrutiny report by the trial Court, and the effective approbation of such indifference by the Appellant Court, was a grave error of law.
  11. The principle of scrutiny and recount was so central to the citizen’s political and constitutional entitlement and comfort, that it was by all means the apposite and crucial device for ascertaining whether there existed cogent factual premises to support the annulment of an election. On that account, an order for scrutiny was a distinctly appropriate, reliable, qualitative, and objective process for assuring the credibility, verifiability, transparency and accuracy of the electoral process.
  12. Had the trial Court kept faith with its orders for scrutiny, the trial process would have taken the right course as a genuine picture would have emerged regarding the compatibility of forms emanating from 3rd and 4th respondents, with the record posted and published by the constitutionally mandated body, the Independent Electoral and Boundaries Commission.
  13. Both the trial Court and Appellant Court did not accord deference, to the prima facie legitimacy of official records emanating from the Independent Electoral Boundaries Commission and to the established procedure for evaluating evidence relating to claims of irregular conduct of an election and the relevant law regarding proof in electoral causes.
  14. Scrutiny and recount was ordered and directed by the trial Court upon an application made by the 3rd and 4th respondents, and a report was duly prepared and compiled by the Court’s Deputy Registrar. As the process of application of evidence embodied in the scrutiny report, to an electoral dispute that focused on clear terms of the Constitution and the law, was a question of law, in every respect, the matter was within the jurisdiction of the Appellate Court. It was a matter of law within the terms of section 85A of the Elections Act and the Court of Appeal had jurisdiction to hear and determine it.
  15. The question of costs remained a live issue in the disposal of electoral matters, and the capping of costs provided for under rule 30 of the Petition Rules, 2017 was to ensure that parties approached courts without the fear of being subjected to excessive costs.
  16. Capping of costs was intended to curb the practice of awarding large sums in costs, as high costs were an impediment to the right of access to justice. The guiding principles for the award of costs in electoral matters, were as follows:-
    1. the general rule that “costs follow the event” was applicable in election matters in which no special circumstances were apparent;
    2. however, an election Court had discretion in reserve, to award costs as merited by the occasion;
    3. a discretion was vested in the Election Court to prescribe a ceiling for the award of costs;
    4. in setting a ceiling to the award of costs, the election Court was to be guided by certain considerations, namely:-
      1. costs were not to be prohibitive, debarring legitimate litigants from moving the judicial process;
      2. inordinately high costs were likely to compromise the constitutional right of access to processes of justice;
      3. costs should not to bear a punitive profile;
      4. Courts, in awarding costs, were to be guided by principles of fairness, and ready access to motions of justice;
      5. costs were intended for decent and realistic compensation for the initiatives of the successful litigant;
      6. costs were not an avenue to wealth, and were not for enriching the successful litigants;
      7. the award of costs should not defer to any makings of opulence or profligacy in the mode of conduct of the successful party’s cause.

Petition of appeal allowed. The 3rd and 4th respondents were to bear the appellants’ costs in the High Court, the Court of Appeal, the Supreme Court. The 1st and 2nd respondents were to bear their own costs.

JURISDICTION The Supreme Court does not have jurisdiction to entertain matters pending before the High Court

Manchester Outfitters (Suing Division) Limited Known as King Woollen Mills Limited and Gloat Industries Limited V. Standard Chartered Financial Services and 2 others [2019] eKLR
Petition (Application) 6 of 2016
Supreme Court of Kenya at Nairobi
D K Maraga CJ &P; M K Ibrahim, S Wanjala, N S Ndungu, & I Lenaola, SCJJ
February 6, 2019
Reported by Flora Weru and Kakai Toili

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Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court- where there was a matter pending before court-whether the Supreme Court had jurisdiction to entertain matters that were pending before the High Court

Brief facts:
The applicant filed an application before the Court to determine a dispute regarding the legal representation of the 2nd petitioner between it and the respondent. The applicant contended that it had been designated to represent the 2nd petitioner via a company board resolution passed by several members whereas the respondent contended that they had been duly instructed by one of the directors, on behalf of the petitioners to act as their legal representative.
The application was heard by a single judge of the Court who dismissed the application and allowed the respondents to represent the 2nd petitioner among other orders. Aggrieved by the said orders the applicants filed the instant application for review of the said orders.

Issue:

  1. Whether the Supreme Court has Jurisdiction to entertain matters pending before the High court. Read More..

Relevant Provision of Law
Supreme Court Act No. 7 of 2011
Section 24
1) In any proceedings before the Supreme Court, any judge of the Court may make any interlocutory orders and give any interlocutory directions as the judge thinks fit, other than an order or direction that determines the proceedings or disposes of a question or issue before the court in the proceedings.
2) Any person dissatisfied with the decision of one judge in the exercise of a power under subsection (1) is entitled to have the matter determined by a bench of five judges.

Held:

  1. The question of representation was pending before the High Court. The guiding principle was to be that the chain of courts in the constitutional set-up, running up to the Court of Appeal, had the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law. Only cardinal issues of law or of jurisprudential moment would deserve further input of the court.
  2. Since the question of the 2nd petitioner’s legal representation lay at the High Court, the court lacked jurisdiction to entertain the instant application and there was therefore no reason to review the orders of the court issued on June 13, 2017.

Application dismissed and the applicants to bear the costs.

JURISDICTION The Supreme Court lacked jurisdiction to hear a matter, about the constitutionality of a statute, that was first raised at the Court of Appeal and was not considered at the High Court

Mohammed Mahamud Ali & another v Independent Electoral & Boundaries Commission & 2 others
Petition 31 of 2018
Supreme Court of Kenya at Nairobi
M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
February 6, 2019
Reported by Beryl Ikamari & Mathenge Mukundi

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Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court–matters of constitutional interpretation and application-where a Supreme Court appeal raised matters on the constitutionality of a statute-section 83 of the Elections Act which was not determined in the Superior Courts-whether the Supreme Court had jurisdiction to hear and determine the matter on constitutionality of the statute.
Electoral Law-election petition appeal-awarding of costs-discretion to award costs-which party should pay bear the costs in an the election petition-whether election petitions, were forms of public interest litigation, in which parties should bear their own costs -Elections Act, No 24 of 2011, section 84.
Evidence Law-burden of proof-burden and standard of proof in election petitions-discharge of the burden of proof by a petitioner and the shifting of the burden of proof to the respondent-whether the burden of proof shifted to the respondents- Evidence Act (Cap 80) sections 108 & 109.

Brief facts:
The Appellant filed his appeal to the Supreme Court seeking to reverse the Court of Appeal decision that upheld the 3rd respondent as the Member of National Assembly of Changamwe Constituency. The 3rd respondent was declared the winner of the Member of the National Assembly elections for Changamwe Constituency, held on August 8, 2017.
At the High Court, the appellant filed a petition in which he challenged the conduct of the parliamentary elections. He cited various electoral irregularities and illegalities. He alleged that there was improper influence, issuance of multiple ballot papers, denial of voter’s right to vote and discrepancies in number of votes cast as compared to the number of voters who turned up to vote in several polling stations. The appellant also alleged that there were variations in the number of votes cast for different electoral seats, involvement in electoral malpractice by 3 polling clerks and that some ballot papers were not signed and stamped by the presiding officers.
The High Court held that although there were irregularities in the parliamentary elections, those irregularities were not of such a magnitude as to warrant nullifying the election result. The petition was dismissed with costs.
The appellant was aggrieved by the High Court’s decision and appealed to the Court of Appeal. During the appeal the appellant introduced a new pleading that was not canvassed in the trial Court, and it was on the constitutionality of section 83 of the Elections Act. In its findings the Court of Appeal held that the High Court was right in determining that the alleged malpractices were not of a magnitude that would cause nullification of the election result. The discrepancies complained of, did not interfere with the result of the parliamentary election. The Court of Appeal further held that it could neither entertain nor pronounce itself on a constitutional matter that was not first canvassed on at the trial Court. The Court of Appeal declared that the 3rd respondent was validly elected and the appeal was dismissed.
The appellant further appealed to the Supreme Court against the Court of Appeal decision. At the Supreme Court, the appellant contended that the evidence placed before the Superior Court showed that there were irregularities and illegalities. Those irregularities should have led to nullification of the election. At the High Court, the appellant was ordered to pay costs of Kshs 8,000,000.00/= He contended that the parties should have borne their own costs.

Issues:

  1. Whether an issue on constitutionality of a statute, which was not canvassed at the High Court but was first raised at the Court of Appeal, could be raised at the Supreme Court.
  2. Whether the electoral illegalities and irregularities, proven by the appellant warranted the nullification of the election results.
  3. Whether an election petition was a form of public interest litigation, and therefore every party to an election petition should bear its own costs.
  4. In an election petition, when would the burden of proof shift?Read More..

Held:

  1. The Supreme Court lacked jurisdiction to hear and determine issues of constitutionality of section 83 of the Elections Act. There was no contention that the issue of constitutionality of section 83 of the Elections Act was not raised at the High Court. The issue was first raised in the Court of Appeal which neither entertained nor pronounced itself on the issue. The constitutionality issue did not originate from the High Court and therefore the Supreme Court could not hear and determine it. In addition, questions entailing the interpretation and application of the Constitution, for good order and efficiency in the administration of justice, had to commence at the High Court.
  2. The proven irregularities were insufficient to nullify the election. The appellant proved a single instance of improper influence in which an IEBC official assisted a lady to vote in favour of the 3rd respondent, a single form that the Presiding Officer failed to countersign on the corrections that were made in it and one polling station where the number of the vote cast exceeded the number of the registered voters. The appellant failed to show how those discrepancies affected the results garnered by the 3rd respondent. Procedural or administrative irregularities and other errors occasioned by human imperfections were not enough, by and of themselves, to nullify an election. Elections were not perfect and errors, so long as they were minimal, should not be considered to affect the will of the people.
  3. The test for the nullification of an election was provided for in section 83 of the Elections Act. The section in the form that it was before the 2017 amendment was applicable to the appeal. It provided that an election would not be voided for non-compliance with any written law relating to the election if it appeared that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.
  4. In an election petition, the burden of proof remained at all times with the appellant. An appellant was under an obligation to discharge the initial burden of proof before the respondents were invited to bear the evidential burden. Where a party alleged non-conformity with the electoral laws, the appellant had to not only prove that there had been non-compliance with the law, but that such non-compliance affected the outcome of the elections. Upon discharging that burden, the respondent would bear the burden of proving the contrary. The evidential burden of proof remained with the appellant at all times and that was the legal position regarding the questions of burden of proof in election petitions.
  5. The Court of Appeal determined that the election petition was not a public interest litigation that ought to attract no costs on the appellant. The Court held that the Appellant was to bear the costs of the appeal. That decision could not be faulted as costs followed the event.
  6. Section 84 of the Elections Act stated that an election court would award costs of and incidental to a petition and such costs would follow the cause. Costs followed the event and a court had discretion in awarding costs. There was no reason to disturb the settled legal provisions on costs.
  7. The Court of Appeal could not be faulted for neither entertaining nor making a pronouncement on the issue of constitutionality of section 83 of the Elections Act. As there was no deliberation on the same before the High Court; the issue sprung out at the Court of Appeal and should have been canvassed fully at the trial Court. The High Court was the first port of call in interpreting the Constitution and it ought to have been accorded an opportunity to pronounce itself on the issue.
  8. The Court of Appeal rightfully made the determination that the illegalities and irregularities proved by the Appellant were not of such a magnitude as to nullify the election result.

Petition of appeal dismissed. The Appellant was to bear the costs of the appeal.

CIVIL PRACTICE AND PROCEDURE The Supreme Court upholds the election of the Member of the National Assembly for Kabuchai Constituency.

James Lusweti Mukwe v Independent Electoral and Boundaries Commission & 2 others [2019] eKLR
Petition 25 of 2018
Supreme Court
Ibrahim, Ojwang, Wanjala, Njoki & Lenaola SCJJ
January 30, 2019

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Civil Practice and Procedure- appeals-notice of appeal-timelines within which to file a notice of appeal- extension of time to file a notice of appeal- where the petitioner sought for the leave of court to file a notice of appeal out of time- whether there was a competent appeal before the Court of Appeal by virtue of the notice of appeal having been filed out of time-Court of Appeal (Election Petition) Rules, 2017, rule 5; rule 17
Constitutional law- fundamental rights and freedoms –infringement of fundamental rights and freedoms -right to fair hearing-where a party alleged that he had not given an opportunity to submit on issues touching on a notice of appeal filed out of time-whether his right to fair hearing was breached-Constitution of Kenya, article 50

Brief facts:
The 3rd respondent was aggrieved by the decision of the High Court to uphold the elections of the petitioner as Member of the National Assembly for Kabuchai Constituency. He filed an appeal at the Court of Appeal contesting the High Court decision to affirm the petitioner’s win. Before the appeal could be heard, the 1st and 2nd respondents filed an application seeking an order that the notice of appeal be struck out on grounds that it was filed out of time and without the leave of the Court. In response, the 3rd respondent filed an application seeking extension of time to file a notice of appeal dated March 26, 2018 as the one dated March 6, 2018 had been filed out of time.
After considering the circumstances which led to the notice of appeal being filed two days late, the Court of Appeal allowed the 3rd respondent’s application and deemed the notice of appeal filed on March 6, 2018 as duly filed. It also went ahead to nullify the election of the petitioner. Being aggrieved by that decision, the petitioner filed the instant appeal.

Issues:

  1. Whether the petitioner’s right to fair hearing was infringed as he was not given an opportunity to address the issues in the notice of appeal filed out of time.
  2. Whether there was a competent appeal before the Court of Appeal by virtue of the notice of appeal having been filed out of time.
  3. What were the principles applicable in interfering with the discretion of another court?Read More..

Relevant provisions of the law
Constitution of Kenya
Article 159(2) (d)
In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

d) Justice shall be administered without undue regard to procedural technicalities;

Held:

  1. Jurisprudence emanating from the Supreme Court was clear on when an appeal met the jurisdictional threshold under article 163(4) (a) of the Constitution. A litigant had to show that the alleged question of constitutional interpretation or application formed the basis of the Superior Court’s reasoning so as to transcend to the Supreme Court by way of an appeal.
  2. Where specific constitutional provisions could not be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant was required to demonstrate was that the Court’s reasoning and the conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application.
  3. In making a decision on whether an appeal was properly before the Supreme Court, reference was to be made to the decision that was being appealed. The petitioner contended inter alia that the Court of Appeal erroneously assumed jurisdiction when there was no valid notice of appeal capable of triggering the Appellate Court’s jurisdiction. Thus, the 1st and 2nd respondents had sought to strike out the 3rd respondent’s notice of appeal on grounds that it was filed out of time and without leave of the Court.
  4. In considering that application, together with the 3rd respondent’s application for extension of time to file a notice of appeal, the Court of Appeal took guidance from rules 5 and 17 of the Court of Appeal (Election Petition) Rules, 2017, which gave the Court power to extend time and to exercise discretion respectively, when considering applications before it. Particularly, the rules required that exercise of the Court’s discretion must be subject to the provisions of article 159(2) (d) of the Constitution which required adjudicating bodies to administer justice without undue regard to procedural technicalities. That provision therefore was at the center of the Court of Appeal’s reasoning on the issue and formed a key consideration when exercising the discretion recognized by the said Court of Appeal Rules.
  5. The petitioner’s appeal properly fell for adjudication before Supreme Court as of right under article 163(4) (a) of the Constitution. However , neither articles 25 nor 50 of the Constitution formed the basis of any interpretation or application to trigger the jurisdiction of the Supreme Court under article 163(4)(a) and even if it were, the petitioner did not identify which of the four categories of rights in article 25 was allegedly infringed by the Court of Appeal. Even if an assumption was made therefore that the reference to article 25 meant 25(c) which is the right to fair trial, the petitioner had not shown how the Court of Appeal ignored any of the ingredients of a fair trial as provided for under article 50(2) of the Constitution and how in any case, his case fit within the definition of article 50(2). The invocation of articles 25 and 50 was irrelevant in the appeal before the instant Court.
  6. The petitioner was not justified to submit that his right to fair hearing was infringed because he was not given an opportunity at the Court of Appeal to submit on issues touching on the notice of appeal dated March 6, 2018. Aside from the fact that neither articles 25 nor 50 were the subject of interpretation or application by the Court of Appeal, there were two substantive applications before that court.
  7. The judges of the Court of Appeal acknowledged that there were two interlocutory applications before them which were heard simultaneously with the hearing of the substantive appeal. Even though the petitioner had not filed any of those applications, he was still entitled as he did, to submit before the Court on issues raised in those applications. It had not been claimed that one party had the opportunity to address the Court and another did not. The proceedings as well as the submissions before the Court of Appeal spoke for themselves. Consequently, there was no merit in the petitioner’s claim thus it was for dismissal.
  8. The question before the court was the basis on which the Court of Appeal treated a clear application for extension of time to file the notice of appeal dated March 26, 2018 as referring to the notice of appeal dated March 6, 2018. If it was in the interest of justice, as stated, the converse was true. It had no basis for determining a matter not placed before it and more so where the implications were highly prejudicial to one party.
  9. The exercise of discretion by one court was seldom interfered with by another court, even an appellate one. But where the exercise of discretion was based on whim, was capricious or prejudicial, then it could be interfered with. The following principles were applicable where discretion may be interfered with:
    1. The appellate Court acted on a whim or that;
    2. Its decision was unreasonable; and
    3. It was made in violation of any law or the Constitution or that;
    4. It was plainly wrong and caused undue prejudice to one party.

    The Court of Appeal acted wrongly and flouted all the above principles and to uphold its actions would be a perpetration of the same action.

  10. The filing of a timely notice of appeal was a jurisdictional prerequisite. Unless the notice was actually or constructively filed within the appropriate filing period, an appellate court was without jurisdiction to determine the merits of the appeal and ought to dismiss the appeal. The purpose of that requirement was to promote the finality of judgments by forcing the losing party to take an appeal expeditiously or not at all.
  11. Since there was no valid notice of appeal filed, it meant that there was no proper appeal before the Court of Appeal and all proceedings on appeal were a nullity.

Appeal allowed.
Orders:-

  1. The Judgment of the Court of Appeal dated July 26, 2018 was set aside.
  2. A declaration is hereby issued that the petitioner was validly elected as the Member of the National Assembly for Kabuchai Constituency during the election held on August 8, 2017.
  3. Each party shall bear the costs of this Appeal.

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