[2018] KECA 499 (KLR)
The Court found that the appellant failed to file an appeal within the 30 days required by section 85A(1)(a) of the Elections Act and Rule 8(5) of the Court of Appeal Election Petition Rules, 2017. As a result, the notice of appeal served no practical purpose and was rendered futile. In the absence of any appearance...
Source-derived case information.
- Citation
- [2018] KECA 499 (KLR)
- Parties
- Appellant: Peter Odima Khasamule; Respondent: Independent Electoral and Boundaries Commission (I.E.B.C.); Respondent: Fredrick Apopa, Returning Officer Busia County; Respondent: Sospeter Odeke Ojaamong
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2018
- Procedural Posture
- Election Petition / Notice to Show Cause Regarding Striking Out of Notice of Appeal
- Outcome
- Notice of appeal struck out for failure to file appeal within statutory period.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Notice of Appeal, Striking Out Proceedings, Election Appeals, Timeliness of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Odima Khasamule
Appellant
Independent Electoral and Boundaries Commission (I.E.B.C.)
Respondent
Fredrick Apopa, Returning Officer Busia County
Respondent
Sospeter Odeke Ojaamong
Respondent
Procedural Posture
Election Petition / 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 Elections Act and relevant Court of Appeal Rules.
Ratio Decidendi
The Court found that the appellant failed to file an appeal within the 30 days required by section 85A(1)(a) of the Elections Act and Rule 8(5) of the Court of Appeal Election Petition Rules, 2017. As a result, the notice of appeal served no practical purpose and was rendered futile. In the absence of any appearance or argument from the appellant to show cause, the Court exercised its discretion to strike out the notice of appeal under Rule 84 of the Court of Appeal Rules as read with Rule 4(2) of the Court of Appeal Election Petition Rules, 2017. No order as to costs was made.
Court Disposition
Notice of appeal struck out for failure to file appeal within statutory period.
Orders
- The Notice of Appeal filed on 19th February, 2018 is struck out under Rule 84 of the Court of Appeal Rules as read with Rule 4(2) of the Court of Appeal Election Petition Rules, 2017.
- No order as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E.M.GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJ.A.)
CIVIL APPEAL ELECTION PETITION NO. 4 OF 2018
BETWEEN
PETER ODIMA KHASAMULE......................................APPELLANT
AND
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION (I.E.B.C.)...........1ST RESPONDENT
THE RETURNING OFFICER BUSIACOUNTY,
FREDRICK APOPA...............................................2ND RESPONDENT
SOSPETER ODEKE OJAAMONG......................3RD 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. 4 OF 2018)
*******************************************
ORDER OF THE COURT
The advocates for Peter Odima Khasamule who filed a Notice of Appeal on 19th February, 2018 signifying an intention to appeal against the decision of the Election Court dated 12th February, 2018 have not appeared today to show cause why the notice of appeal should not be stuck out.
Since the intended appellant did not file an appeal within the 30 days stipulated by section 85 A (1) (a) of the Elections Act as read with Rule 8(5) of the Court of Appeal Election Petition Rules, 2017, the Notice of Appeal has become futile.
Accordingly, it is struck out under Rule 84 of the Court of Appeal Rules as read with Rule 4(2) of the Court of Appeal Election Petition Rules, 2017 with no orders as to cost.
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 copy
of the original
DEPUTY REGISTRAR