[2023] KECA 1336 (KLR)

Gedi v Gedi & 2 others (Election Petition Appeal E018 of 2023) [2023] KECA 1336 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KECA 1336 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Election Petition Appeal E018 of 2023

DK Musinga, S ole Kantai & LA Achode, JJA

November 10, 2023

Between

Mohammed Feisal Gedi

Appellant

and

Kolosho Hassan Gedi

1st Respondent

Abdullahi Ibrahim Isaack

2nd Respondent

Independent Electoral & Boundaries Commission

3rd Respondent

(Being an appeal from the Judgment and Decree of the High Court of Kenya at Garissa (Mulwa, J.) delivered on 10th August 2023 in Election Appeal No. E006 of 2023 as Consolidated with Election Petition Appeal No. E007 of 2023 Election Petition Appeal E006 & E007 of 2023 (Consolidated),

Election Petition E001 of 2022 )

Ruling

Introduction 1. Electoral disputes are hardly conceded, even in instances where the law appears to be clear and settled, as we shall shortly demonstrate.

2. The main issue for our determination in this matter is whether this Court has jurisdiction to hear and determine a second appeal arising from the election of Member of a County Assembly. Background

3. Mohamed Feisal Gedi (the appellant), and Kolosho Hassan Aden (the 1st respondent), both registered voters in Garissa County, were among the seven candidates who vied for the seat of Member of County Assembly (MCA) for Fafi Ward within Fafi Constituency, Garissa County, which was held on August 9, 2022.

4. The election was conducted by the Independent Electoral and Boundaries Commission (the IEBC), pursuant to its mandate under article 88 (4) of the Constitution of Kenya, 2010. Abdullahi Ibrahim Issack (the 2nd respondent), who was the Constituency Returning Officer, declared the 1st respondent as the duly elected MCA for Fafi Ward, having garnered a total of 802 votes. The appellant had attained 720 votes.

5. The appellant was dissatisfied with the outcome of the said election and filed a petition, to wit, Election Petition No. E001 of 2022, at the Chief Magistrates’ Court at Garissa. The gravamen of the petition was that the 2nd respondent had unlawfully and illegally declared the 1st respondent the duly elected MCA for Fafi Ward without accurately collating, tallying, and computing all the results from the 18 polling stations within Fafi Ward. He sought nullification of the said election and conduct of a fresh one.

6. The respondents filed their responses to the petition, and the election court, having considered the petition, the responses, the submissions, the recount, and the scrutiny report which it had ordered, delivered its judgment on 24th February 2023. The court agreed with the appellant that the collation of the results was not done accurately. The court invalidated the election of the 1st respondent and ordered the 2nd and 3rd respondents to issue a certificate of election to the appellant as the MCA for Fafi Ward.The IEBC was condemned to costs of the petition for both the appellant and the 1st respondent, which were capped at Kshs. 300,000/= each.

Appeal to the High Court 7. Aggrieved and dissatisfied with the decision of the election court, the 1st respondent filed an appeal to the High Court, to wit, Election Petition Appeal No. E006 of 2023. He contended that the learned magistrate erred in law by, inter alia: misdirecting himself and thus misapplying the provisions of section 80(4)(a) and (b) of the Elections Act,2011 (the Elections Act) by declaring the appellant as duly elected pursuant to partial scrutiny of 2 ballot boxes and subsequently ordering the 3rd respondent to issue a certificate of election; disregarding section 83(1)(a) and (b) of the Elections Act and thereby failing to find that an election will not be declared void for non-compliance with any written law if it appears that the election was conducted in accordance with the principles laid down in the Constitution and written law, and the non-compliance did not substantially affect the results of the election; disregarding a binding decision of the Court of Appeal, to wit, Abdirahman Ibrahim Mohamud vs. Mohamed Ahmed Kolosh & 2 Others [2018] eKLR, on declaring a petitioner the elected leader, and in so doing arrived at a perverse decision in law; and by failing to evaluate the evidence on record and as a result made a decision that no reasonable tribunal or court applying its mind to the entire evidence could have reached.

8. He urged the High Court to set aside the judgment of the election court dated 24th February 2023 and the resultant decree, and substitute therefor an order dismissing Election Petition No E001 of 2022.

9. The 2nd and 3rd respondents on their part filed a cross-appeal to wit, Election Petition Appeal No. E007 of 2023. They contended, inter alia, that the learned magistrate erred in law: in his interpretation of section 80(4)(a) & (b) of the Elections Act, and in issuing a declaration that the appellant is the duly elected MCA for Fafi Ward, and in directing the 2nd and 3rd respondents to issue a certificate of election on account of recount and scrutiny conducted in two polling stations; in arriving at a determination that was contrary to the law and manifestly borne out of the misapprehension of the intent and purport of section 80(4) (a) & (b) of the Elections Act, and in awarding costs to the appellant and his advocate.

10. They prayed that their cross-appeal be allowed; that the judgment of the election court be set aside and be substituted with an order dismissing the appellant’s Petition; that the High Court issues any such other orders that it may deem fit to secure the ends of justice; and that costs be provided for.

11. The two appeals were consolidated, and vide a judgment dated 10th August 2023, the High Court (Mulwa, J.) allowed the appeal and set aside the judgment and decree of the election court. The cross-appeal was also allowed save, on the issue of costs. The High Court issued the following orders: the certificate of election of the Member of County Assembly for Fafi Ward issued to Mohamed Feisal Gedi is declared invalid; the 2nd and 3rd respondents are hereby directed to conduct a fresh election for the seat of Member of County Assembly for Fafi Ward in Garissa County while ensuring due compliance with the governing terms of the Constitution; the costs of the petition in the trial court and the costs of the appeal be borne by the 2nd and 3rd respondents, both capped at Kshs. 600,000/= each; the 2nd and 3rd respondents to bear their own costs at the trial court and the High Court; and Instruction fees for the counsel of the 1st respondent and the appellant in the trial and High Court be borne by the 2nd and 3rd respondents and capped at Kshs. 500,000/- each.

Appeal to this Court. 12. The appellant was aggrieved and dissatisfied with the judgment of the High Court and filed an appeal to this Court on several grounds. He also filed an application dated 1st September 2023, where he sought leave to amend his notice of appeal.

13. On his part, the 1st respondent filed a notice of preliminary objection dated 15th September 2023. He contended that no appeal lies to this Court from decisions of the High Court regarding election of an MCA. The 2nd and 3rd respondents also filed similar preliminary objections, citing the provisions of section 75 (4) of the Elections Act read together with section 85A of the same Act. They sought an order to strike out the appeal for want of jurisdiction.

14. At the hearing hereof, learned counsel Mr. Akello appeared for the appellant, while learned counsel Mr. Mugwe was present for the 1st respondent. The 2nd and 3rd respondents were represented by Mr. Sheikh, learned counsel. All parties were in agreement that the preliminary objections on record would be argued and determined first since they touch on this Court’s jurisdiction. The submissions by counsel were therefore restricted to the issue of jurisdiction.

15. The 1st respondent’s advocate submitted that as per the decision of the Supreme Court in Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others [2012] eKLR, this court cannot exercise jurisdiction that has not been conferred upon it, either by the Constitution or statute.

16. He argued that electoral proceedings are sui generis, citing this Court’s decision in Mbaraka Issa Kombe vs. Independent Electoral and Boundaries Commission (IEBC) & 2 others [2018] eKLR, and the Indian Supreme Court decision in Jyoti Basu & Others vs. Debi Ghosal & Others [1982] AIR 983; [1982] SCR (3) 318, where it was held that electoral law is a special jurisdiction to be exercised in accordance with the statute creating it. In this connection, therefore, it was submitted that there was no provision, either in the Constitution or in the electoral laws, for a second appeal regarding election of MCAs.

17. It was further submitted that the provisions of section 75 (4) of the Elections Act, 2011, provides for only one level of appeal in elections concerning MCAs, and that the provisions of section 85A (1) of the Elections Act do not provide for appeals to this Court in elections for that position. In sum, thereof, it was contended that the Elections Act does not confer this Court with jurisdiction to hear second appeals concerning election of MCAs.

18. It was contended that this Court has previously returned similar verdicts on the issue. Counsel cited several decisions, including, Hamdia Yaroi Shek Nuri vs. Faith Tumaini Kombe & 2 Others [2019] eKLR; Marthlinda Auma Oloo vs. IEBC & 3 Others [2019] eKLR; Mohammed Ali Sheikh vs. Abdiwahab Sheikh Osman Hathe & 4 Others [2018] eKLR; Hassan Jimal Abdi vs. Ibrahim Noor Hussein & 2 others [2018] eKLR and Peter Bodo Okal vs. Philemon Juma Ojuok & 2 others [2019] eKLR.

19. We were referred to the Supreme Court decision in Hamdia Yaroi Shek Nuri vs. Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission [2019] eKLR, where the Court affirmed this Court’s holding in the above cited appeals.

20. Counsel for the 2nd and 3rd respondents adopted the submissions made by Mr. Mugwe for the 1st respondent. They pointed out that the aforesaid Supreme Court decision is binding upon this Court.

21. The appellant’s counsel opposed the preliminary objections. He submitted that this Court has the requisite jurisdiction in an election petition concerning an MCA, saying that the jurisdiction is primarily founded on the provisions of Article 164 (3) of the Constitution, which clothes this Court with the jurisdiction to hear appeals from the High Court and any other Court or Tribunal as prescribed by an Act of Parliament. The appellant contended that Article 164 (3) places no limitation whatsoever on the jurisdiction of this Court to hear appeals from the High Court, be they first or second appeals, and that any restriction on the Court’s jurisdiction as envisaged under the Appellate Jurisdiction Act was replaced by the clear language of the Constitution which does not envisage any form of limitation.

22. On the applicability of the provisions of section 85A of the Elections Act, counsel submitted that there is a lacuna as to whether second appeals in elections concerning MCAs can lie to this Court. The appellant’s submission, however, was that such a lacuna should not bar a second appeal to this Court, as that would be allowing an apparent error and injustice as the one meted on the appellant by the High Court to continue unabated. This Court was urged to depart from its decisions in the above cited appeals where it declined jurisdiction in election petitions concerning election of MCAs, which counsel alleged were made per incuriam.

23. The appellant’s counsel further submitted that the provisions of Article 164 (3) of the Constitution cannot be overridden by the provisions of section 85A of the Elections Act. In this connection, the appellant contended that the provisions of section 85A of the Elections Act were discriminatory and unconstitutional, as they expressly allow only certain persons to appeal to this Court.

24. The appellant’s counsel placed reliance on the decision of the Supreme Court of Kenya in Nyutu Agrovet Limited vs. Airtel Networks Kenya Limited; Chartered Institute of Arbitrators- Kenya Branch (Interested Party) [2019] eKLR where, in arbitration disputes, the Court provided interpretation on the circumscribed jurisdiction of this Court where there is legislative silence on the right of a second appeal, or where there is no express clause that bars a second appeal to this Court. The Supreme Court held, inter alia, that:“.…considering that there is no express bar to appeals under Section 35, we are of the opinion that an unfair determination by the High Court should not be absolutely immune from the appellate review. As such, in exceptional circumstances, the Court of Appeal ought to have residual jurisdiction to enquire into such unfairness. However, such jurisdiction should be carefully exercised so as not to open a floodgate of appeals thus undermining the very essence of arbitration.”

25. In sum, it was contended that the ratio decidendi in Nyutu Agrovet (supra) should apply in this appeal, as the legislative or statutory lacuna on second appeals to this Court on elections concerning MCAs should not be a barrier to attaining justice. Determination

26. As we stated at the beginning, the singular issue which we are called upon to determine at this juncture is whether this Court has jurisdiction to hear a second appeal in election matters arising from election of MCAs.

27. It is trite law that jurisdiction of a court is everything, and without it, a court must down its tools. This was the holding of this Court in The Owners of the Motor Vessel Lillian ‘S’ vs. Caltex Kenya Limited (1989) KLR 1 thus:“…… it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence…”

28. Jurisdiction does not exist in a vacuum, to be exercised at a court’s discretion or at a party’s whim. It is a creature of the Constitution, legislation, or both, as held by the Supreme Court in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others (supra).

29. Similarly, in Orange Democratic Movement vs. Yusuf Ali Mohamed & 5 Others [2018] eKLR, this Court held that:“…. a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law, not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court...”

30. The appellate jurisdiction of this Court is provided for under the provisions of Article 164 (3) of the Constitution. This Court is conferred with jurisdiction to hear appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament. The provisions of Article 164 (3) are replicated under section 3 of the Appellate Jurisdiction Act.

31. A casual reading of the provisions of Article 164 (3) of the Constitution would inevitably yield the interpretation that this being an appeal against the judgment of the High Court of Kenya, then this Court has jurisdiction to hear and determine it on its merits. That is not necessarily so in electoral disputes. The Supreme Court as well as this Court have, in numerous decisions, consistently held that electoral laws are sui generis. In Moses Masika Wetangula vs. Musikari Nazi Kombo & 2 Others [2015] eKLR, the Supreme Court held thus:“It is now an indelible principle of law that the proceedings before an election Court are sui generis. They are neither criminal nor civil. The parameters of this jurisdiction are set in statute (the Elections Act). As such, while determining an election matter, a court acts only within the terms of the statute, as guided by the Constitution. This approach is in keeping with the stand taken by the Supreme Court of India in Jyoti Basu & Others v. Debi Ghosal & Others 1982 AIR 983:“An Election petition is not an action at Common Law, nor in Equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to election law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, the Court is put in a straight jacket.” [Emphasis added]

32. This Court in Timamy Issa Abdalla vs. Independent Elections & Boundaries Commission (IEBC) & 3 Others [2018] eKLR held that ‘election petitions are sui generis matters that are strictly governed by the Constitution, the Elections Act and the rules made thereunder.’ This Court took a similar view in Mbaraka Issa Kombe vs. Independent Electoral and Boundaries Commission (IEBC) & 2 Others (supra) and in Rozaah Akinyi Buyu vs. Independent Electoral and Boundaries Commission & 2 others [2014] eKLR.

33. The parameters of a court’s jurisdiction in election proceedings are set out in the Elections Act. It is imperative for us to point out that the Elections Act was enacted by Parliament pursuant to the provisions of Article 87 (1) of the Constitution, which provides that ‘Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.’ The rationale for Article 87 (1) of the Constitution was explained by the Supreme Court in Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others [2014] eKLR thus:“Article 87 (1) grants Parliament the latitude to enact legislation to provide for “timely resolution of electoral disputes.” This provision must be viewed against the country’s electoral history. Fresh in the memories of the electorate are those times of the past, when election petitions took as long as five years to resolve, making a complete mockery of the people’s franchise, not to mention the entire democratic experiment. The Constitutional sensitivity about “timelines and timeliness”, was intended to redress this aberration in the democratic process. The country’s electoral cycle is five years. It is now a constitutional imperative that the electorate should know with finality, and within reasonable time, who their representatives are. The people’s will, in the name of which elections are decreed and conducted, should not be held captive to endless litigation.”

34. The Elections Act at section 75 elaborately provides for redress mechanism in county election petitions. Section 75 (1A) specifically provides that:“(1A)A question as to the validity of the election of a member of county assembly shall be heard and determined by the Resident Magistrate's Court designated by the Chief Justice.”

35. The appeal process from the decision made by the election court is provided for in section 75 (4) of the Election Act thus:“(4)An appeal under subsection (1A) shall lie to the High Court on matters of law only and shall be -a.filed within thirty days of the decision of the Magistrate's Court; andb.heard and determined within six months from the date of filing of the appeal.” [Emphasis added]

36. The Elections Act as presently worded does not contemplate second appeals to this Court from decisions concerning elections of MCAs. Section 85A of the Elections Act which provides for appeals from the High Court to this Court in election matters reads as follows:“85A.Appeals to the Court of Appeal(1)An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only…” [Emphasis added]

37. The election appeals to this Court which are envisaged under the Elections Act are those concerning membership of the National Assembly, Senate, or the office of county governor. The election of MCAs does not form part of the disputes to be adjudged by this Court. In other words, the jurisdiction conferred on this Court under the Elections Act to hear election appeals does not extend to the election concerning MCAs.

38. The appellant has advanced an argument that there exists a lacuna under section 85A of the Elections Act concerning second appeals from the election of MCAs. This Court in Joel Nyabuto Omwenga & 2 Others vs. Independent Electoral and Boundaries Commission & Another (supra) addressed itself to the issue of the perceived lacuna. The issue for determination as framed by the Court in that appeal was:“What we are called upon to decide is whether, in the agreed absence of an express provision of law allowing a second appeal to this Court from the High Court in its appellate jurisdiction in an electoral dispute, this Court can nevertheless, for whatever lofty reason, entertain and determine such an appeal. It is not a question of whether we can hear and determine such an appeal but rather whether we can rightfully, properly and lawfully embark on such an undertaking especially where, as here, our jurisdiction has been questioned.”

39. In determining the above issue, this Court held:‘‘The statute gives only one opportunity to appeal to the High Court and even then, on matters of law only. It then imposes timelines on appellants as to the period within which to file the appeal, and on the High Court as to the deadline for its determination. In the absence of like provisions for yet another appeal to this Court with its own timelines, it is as ambitious as it is misconceived for the appellant to presume that a second appeal can lie to this Court.Indeed, other than exemplifying unjustified innovation and hubris were this Court to capture and usurp such undonated jurisdiction, it would make nonsense of the need for finality and expedition that our new electoral laws sought to entrench by the strict timelines in the statute. It must be borne in mind that electoral contests and disputes are highly divisive and disruptive ventures and the people in the Constitution, and Parliament in the statute, sought to limit the period of anxiety and certainty. To assume a non-statute-based jurisdiction to entertain appeals would be to subvert the salutary aims of the people and Parliament. It is a task we have neither desire nor reason to undertake. We are cognizant that the true theatre of electoral competition is the ballot box and there is urgent need for closure. A court should never invent for itself a jurisdiction and thereby prolong the anxiety and subvert the very finality the Constitution envisions and the statute institutes by making no further provision for appeals beyond the one on points of law.” [Emphasis added].

40. Similarly, in Isaac Oerri Abiri vs. Samwel Nyang’au Nyanchama & 2 others (supra), this Court held thus:“It will be observed that there is no mention of a second or third appeal from the decision of the High Court under Section 75 (4) of the Act. In our view, the omission of a second or further appeal from the decision of the High Court under the said section is neither inadvertent nor an error but deliberate. The interpretation we ascribe to the omission is that the legislature intended that there should be no further appeals from the decision of the High Court on appeal from the determination of an election petition on a question of the validity of the election of a member of a county assembly. In our view, if at all it was the intention of Parliament to involve the Court of Appeal in determination of appeals from the High Court on appeals from the decision of the Resident Magistrate's Court, nothing would have been easier than to state that a party aggrieved by a determination of an appeal by the High Court from the Magistrate’s Court, may prefer a second appeal to the Court of appeal. In our view, the legislature clearly intended to confine jurisdiction to determine electoral disputes involving membership of a county assembly to the Resident Magistrate's Court with one chance of appeal to the High Court on matters of law only.” [Emphasis added].

41. Further, this Court in Tumaini Kombe & 2 Others [2018] eKLR, held that it lacked jurisdiction to entertain a second appeal from the High Court, emanating from an election of a MCA. In arriving at its decision, this Court stated thus:“In essence, section 85A, and the recently enacted rules, which are expressed in mandatory terms, are specific on the nature of appeals that can be entertained by this Court. In summary, they provide that appeals shall lie to this Court only where (i) the dispute concerns membership of the National Assembly, Senate or the office of county governors;(ii)the High Court acting in its original jurisdiction; and (iii) the appeal is in respect of matters of law only. Such appeals must be heard and determined within six months of the filing of the appeal. Because there was no intention to stretch electoral disputes from the magistrates’ courts beyond the High Court, there is no similar time limits for the hearing of such appeals.”

42. The decision of this Court in Hamdia Yaroi Sheikh Nuri vs. Faith Tumaini Kombe & 2 others (supra) was challenged at the Supreme Court vide Hamdia Yaroi Shek Nuri vs. Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission [2019] eKLR, Petition No. 38 of 2018. Affirming this Court’s position regarding such appeals, the Supreme Court expressed itself as follows:“(33)The foregoing analysis leads us to the conclusion, in agreement with the Court of Appeal, that in the absence of an express statutory provision, no second appeal lies to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of county assembly. As this determination conclusively disposes of the appeal before us, we shall not consider the second issue.” [Emphasis added]

43. The appellant’s counsel did not allege that the Supreme Court has since reversed itself. The law on second appeals concerning the election of MCAs remains as propounded by the Supreme Court. It was not demonstrated that either this Court or the Supreme Court arrived at the said decisions per incuriam, as alleged by the appellant’s counsel. As we have demonstrated, this Court has severally considered the issue raised in these preliminary objections. In Mohamed Ali Sheikh vs. Abdiwahab Sheikh & 4 Others; Emmanuel Changawa Kombe (Interested Party) [2018] eKLR, Musinga, JA. interrogated in detail the previous decisions of this Court on the issue in question and pronounced himself as follows:“It follows, therefore, in the context of the matter before us, for this Court to depart from a legal position it has consistently held, the parties who contend that the Court’s earlier decisions on the issue under consideration were made per incuriam must strictly demonstrate that the Court acted in ignorance of a decision of its own which had authoritatively settled the issue; or more importantly, in ignorance of a Supreme Court decision; or in ignorance of relevant Articles of the Constitution or statute.”

44. Pursuant to the provisions of Article 163 (7) of the Constitution, this Court is bound by the decisions of the Supreme Court. The Supreme Court has pronounced itself on the issue now before us in this matter. This Court is therefore devoid of jurisdiction to entertain the instant appeal, as it relates to the election of a MCA.

45. Regarding the Supreme Court decisions in Nyutu Agrovet Limited vs. Airtel Networks Kenya Limited; Chartered Institute of Arbitrators Kenya Branch (Interested Party) (supra), though persuasive, they are not applicable in electoral disputes. The said decisions related to second appeals to this Court from decisions of the High Court in arbitration matters. We decline the invitation to apply the said decisions in this matter.

46. In conclusion, we uphold the preliminary objections raised by the 1st, 2nd and 3rd respondents. Consequently, we hereby strike out the notice of appeal and the record of appeal filed by the appellant. We award costs thereof to the respondents, which, subject to taxation, we cap at Kshs.200,000.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. D. K. MUSINGA (P)……………………………JUDGE OF APPEALS. ole KANTAI……………………………JUDGE OF APPEALL. ACHODE……………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR