[2018] KECA 507 (KLR)
The court found that the appellant filed a Notice of Appeal but failed to file the substantive appeal within the 30-day period required by section 85A(1)(a) of the Election Act and Rule 8(5) of the Court of Appeal (Election Petition) Rules, 2017. This non-compliance rendered the Notice of Appeal ineffective and...
Source-derived case information.
- Citation
- [2018] KECA 507 (KLR)
- Parties
- Appellant: Habil Nanjero Bushuru; Respondent: Independent Electoral and Boundaries Commission (I.E.B.C.); Respondent: The Constituency Returning Officer, Butere Constituency; Respondent: Mwale Nicholas Scott Tindi; Respondent: Andrew To Boso
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Appeal 12 of 2018
- Procedural Posture
- Election Petition / Order on Notice to Show Cause Regarding Striking Out of Notice of Appeal
- Outcome
- Notice of Appeal struck out with costs to the respondents.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Notice of Appeal, Election Appeals, Appeal Timelines, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Habil Nanjero Bushuru
Appellant
Independent Electoral and Boundaries Commission (I.E.B.C.)
Respondent
The Constituency Returning Officer, Butere Constituency
Respondent
Mwale Nicholas Scott Tindi
Respondent
Andrew To Boso
Respondent
Procedural Posture
Election Petition / Order on Notice to Show Cause Regarding Striking Out of Notice of Appeal
Legal Issues
- 1 Whether the Notice of Appeal should be struck out for failure to file the appeal within the statutory period.
- 2 Whether the appellant complied with section 85A(1)(a) of the Election Act and relevant Court of Appeal Rules.
Ratio Decidendi
The court found that the appellant filed a Notice of Appeal but failed to file the substantive appeal within the 30-day period required by section 85A(1)(a) of the Election Act and Rule 8(5) of the Court of Appeal (Election Petition) Rules, 2017. This non-compliance rendered the Notice of Appeal ineffective and futile. Consequently, the court exercised its power under Rule 84 of the Court of Appeal Rules, as read with Rule 4(2) of the Court of Appeal (Election Petition) Rules, 2017, to strike out the Notice of Appeal with costs to the respondents.
Court Disposition
Notice of Appeal struck out with costs to the respondents.
Orders
- The Notice of Appeal is struck out under Rule 84 Court of Appeal Rules as read with Rule 4(2) Court of Appeal (Election Petition) Rules, 2017.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E.M.GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
CIVIL APPEAL ELECTION PETITION NO. 12 OF 2018
BETWEEN
HABIL NANJERO BUSHURU......................................APPELLANT
AND
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION (I.E.B.C.)...........1ST RESPONDENT
THE CONSTITUENCY RETURNING OFFICER,
BUTERE CONSTITUENCY................................. 2ND RESPONDENT
MWALE NICHOLAS SCOTT TINDI....... ...........3RD RESPONDENT
ANDREW TO BOSO.............................. ................4TH RESPONDENT
(Being Notice to show cause why the Notice of Appeal should not be struck out under Section 85 A (1) (a) of the Election Act and Rule 83 of the Court of Appeal Rules
in
ELECTION PETITION CIVIL APPEAL NO. 12 OF 2018)
*******************************************
ORDER OF THE COURT
The intended appellant filed a Notice of Appeal on 26th February, 2018 signifying an intention to appeal against the decision of the Election Court dated 16th February, 2018 through the firm of Akusala & Co. Advocates. However, no appeal was filed within 30 days as stipulated by section 85 A (1) (a) of the Election Act as read with Rule 8(5) of the Court of Appeal (Election Petition) Rules, 2017, thereby rendering the Notice of Appeal futile.
In the premises, the Notice of Appeal is struck out under Rule 84 Court of Appeal Rules as read with Rule 4(2) Court of Appeal (Election Petition) Rules, 2017 with costs to the respondents.
Made at Kisumu this 21st day of June, 2018.
E. M. GITHINJI
.....................................
JUDGE OF APPEAL
HANNAH OKWENGU
.......................................
JUDGE OF APPEAL
J. MOHAMMED
......................................
JUDGE OF APPEAL
I certify that this is a true copyof the original
DEPUTY REGISTRAR