[2022] KECA 920 (KLR)
The Court of Appeal held that the High Court erred in law by finding that the notice of appeal filed in the High Court precluded the appellants from pursuing their application for review before the Political Parties Dispute Tribunal. The appellate court reasoned that there was no express statutory or regulatory bar...
Source-derived case information.
- Citation
- [2022] KECA 920 (KLR)
- Parties
- Appellant: Amani National Congress Party; Appellant: Amani National Congress Election Board; Appellant: Ramadhan Butichi; Respondent: David Kubasu Shimenga; Respondent: Independent Electoral and Boundaries Commission (IEBC)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Petition Appeal E001 of 2022
- Procedural Posture
- Election Petition Appeal / Judgment
- Outcome
- Appeal allowed; High Court judgment and decree set aside; 1st respondent's appeal dismissed; review application remitted to Political Parties Dispute Tribunal; each party to bear own costs.
- Judges
- PO Kiage, M Ngugi, F Tuiyott
- Legal Topics
- Notice of Appeal Effect, Review Before Tribunal, Jurisdiction of Political Parties Dispute Tribunal, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amani National Congress Party
Appellant
Amani National Congress Election Board
Appellant
Ramadhan Butichi
Appellant
David Kubasu Shimenga
Respondent
Independent Electoral and Boundaries Commission (IEBC)
Respondent
Procedural Posture
Election Petition Appeal / Judgment
Legal Issues
- 1 Whether the filing of a notice of appeal in the High Court precluded the appellants from pursuing an application for review before the Political Parties Dispute Tribunal.
- 2 Whether the High Court erred in allowing the 1st respondent's appeal and dismissing the appellants' review application.
Ratio Decidendi
The Court of Appeal held that the High Court erred in law by finding that the notice of appeal filed in the High Court precluded the appellants from pursuing their application for review before the Political Parties Dispute Tribunal. The appellate court reasoned that there was no express statutory or regulatory bar preventing the appellants from seeking review, and that the remedies of review and appeal are distinct and may be pursued concurrently unless specifically prohibited. Consequently, the Court set aside the High Court's judgment and decree, dismissed the 1st respondent's appeal, and ordered that the appellants' review application be remitted to the Political Parties Dispute...
Court Disposition
Appeal allowed; High Court judgment and decree set aside; 1st respondent's appeal dismissed; review application remitted to Political Parties Dispute Tribunal; each party to bear own costs.
Orders
- The judgment and decree of the High Court allowing the 1st respondent’s appeal is set aside.
- The 1st respondent’s appeal in the High Court is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
Amani National Congress Party & 2 others v Shimenga & another (Election Petition Appeal E001 of 2022) [2022] KECA 920 (KLR) (7 June 2022) (Judgment)
Neutral citation: [2022] KECA 920 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Election Petition Appeal E001 of 2022
PO Kiage, M Ngugi & F Tuiyott, JJA
June 7, 2022
Between
Amani National Congress Party
1st Appellant
Amani National Congress Election Board
2nd Appellant
Ramadhan Butichi
3rd Appellant
and
David Kubasu Shimenga
1st Respondent
Independent Electoral and Boundaries Commission (IEBC)
2nd Respondent
(Being an Appeal from the Judgment of the High Court of Kenya at Kakamega (Musyoka, J.) dated 27th May, 2022 in HIGH COURT ELECTIONS APPEAL NO. E001 OF 2022 Civil Appeal 1 of 2022 )
Judgment
1. We have considered the memorandum of appeal filed herein together with the written submissions filed by the parties to the appeal and the various authorities cited.
2. Having also heard the addresses by Mr. Malenya, learned counsel holding brief for Mr. Biketi for the appellant, and Mr. Isinta, learned counsel for the 1st respondent and noted the comment by Mr. Bosire, learned counsel for the 2nd respondent that he would rely on his written submissions entirely without highlighting, our decision on the appeal is as follows;a.That the learned Judge erred in law in holding that the notice of appeal filed in the High Court precluded the appellants from pursuing their application for review before the Political Parties Dispute Tribunal.b.That this appeal therefore succeeds, and the judgment and decree of the High Court allowing the 1st respondent’s appeal be and is hereby set aside, substituting therefor an order that the said appeal be dismissed.c.That in consequence, the appellants’ review application dated 28th April, 2022 shall forthwith be remitted to the Political Parties Dispute Tribunal for expedited hearing and disposal.d.That each party shall bear its own costs of this appeal.
4. This judgment is rendered pursuant to Rule 32(5) of the Court of Appeal Rules (2010) conveying the decision of the Court with the reasons therefor to be given on 24th June, 2022.
Order accordingly.
DATED AND DELIVERED AT NAKURU THIS 7TH DAY OF JUNE, 2022. P. O. KIAGE..........................JUDGE OF APPEALMUMBI NGUGI..................................JUDGE OF APPEALF. TUIYOTT............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR