This is the abridged version of the Supreme Court’s majority ruling delivered on August 29 on petition no. 18 of 2014 as consolidated with petition No 20 of 2014, between Evans Kidero, Governor Nairobi (1st Appellant), and Ferdinand Watituti (1st Respondent), being an appeal from the Judgment and Order of the Court of Appeal of May 13, 2014.
ISSUES FOR DETERMINATION
From the pleadings, and the written and oral submissions of the parties, the following issues arise for determination:
(i) Whether the Supreme Court has jurisdiction to hear and determine the appeal hereinunder Article 163(4)(a) of the Constitution;
(ii) Whether the Judges of the Court of Appeal heard and determined an incompetent appeal, contrary to Article 87(1) of the Constitution and Section 85A of the Elections Act;
(iii) Whether the judges of the Court of Appeal, in their majority decision, erred in law in considering matters of fact and evidence contrary to Article 87(1) of the Constitution and Section 85A of the Elections Act;
(iv) Whether the judges of the Court of Appeal, in their majority decision, disregarded the doctrine of stare decisis, by failing to apply binding decisions of the Supreme Court in contravention of Article 163(7) of the Constitution;
(v) Whether the judges of the Court of Appeal, in their majority decision, erred in holding that the 1st respondent’s right to a fair trial under Articles 25(c) and 50 of the Constitution had been denied, when the High Court curtailed the cross-examination of the 5th appellant;
(vi) Whether the judges of the Court of Appeal, in their majority decision, acted contrary to Articles 81(e) and 86 of the Constitution by nullifying the 1st and 2nd appellants election on the ground that the 1st respondent was not accorded the right to fair hearing;
(vii) Whether the Court of Appeal misinterpreted and misapplied Section 82(1) of Elections Act, vis-à-vis Rule 33(2) and (4) of the Elections Petition Rules, regarding scrutiny and recount of votes;
(viii) whether the Judges of the Court of Appeal in their majority decision, erred with regard to the burden and standard of proof applied at the High Court; and
(ix) whether the election Court and the Court of Appeal misinterpreted Section 84 of the Elections Act and Rule 36 of the Elections Petition Rules, in imposing an upper limit to costs.
ANALYSIS
It is clear to us that the appellants are challenging the reasoning and conclusions of the majority decision of the Court of Appeal, regarding the question of timelines in election petitions. They come to this Court seeking a vindication of their cause, because they believe that the appellate Court erred in its interpretation of Section 85A of the Elections Act vis à vis Article 87(1) of the Constitution. They believe that the timelines set out for the filing of election petitions in the Elections Act are in accord with the constitutional command in Article 87(1). They contend that this Court has already established binding precedent on this question. They contest the attempt by the Court of Appeal to elevate and apply a civil-litigation rule (subsidiary legislation) to an election dispute, beyond and in breach of Section 85A and, by extension, the Constitution itself. These are, in our view, pertinent constitutional controversies.
This appeal stands on all fours with the other election-petition appeals such as Munya, Joho and others, which this Court has admitted and determined under Article 163(4) (a) of the Constitution. Accordingly, we have no trepidation in holding that this Court has jurisdiction to entertain it. In broader context, our position is well depicted in the words of Chief Justice Marshall of the U.S.A, in Cohens v. Virginia, 19 U.S. 264 (1821):
“It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and conscientiously perform our duty.”of the appeal to the Court of Appeal.”
It was the appellants’ argument that the appeal was filed after a record 72 days from the date of the Judgment of the High Court. According to the appellants, the mandatory provision of Section 85A (a) of the Elections Act was not adhered to, in contravention of the underpinning constitutional principle of timely resolution of electoral disputes, embodied in Article 87(1). The Appeal was, therefore, incompetent in law. It was urged that the Court of Appeal acted without jurisdiction, by determining an incompetent appeal, the same having been filed outside the mandatory statutory timeline. In canvassing this contention, learned Senior Counsel, Prof. Tom Ojienda submitted that this Court has held that Courts do not have adiscretion to extend mandatory timelines set out in the Elections Act.
Counsel cited a number of authorities including the Joho case, in which this Court affirmed the Court of Appeal’s pronouncement in Ferdinand Waititu v. Independent Electoral and Boundaries Commission & 8 Others Civil Appeal No. 137 of 2013 – that the timelines set by the Constitution and the Elections Act are neither negotiable nor extendable by any Court; Mary Wambui Munene v. Peter Gichuki Kingara & 2 Others S.C Petition No. 7 of 2014 in which this Court was categorical as to the imperatives of timelines demanded by the Constitution, in the settlement of electoral disputes; and Munya 2 in which this Court declared the constitutional basis of Section 85A of the Elections Act, stating that it was “neither a legislative accident nor, a routine legal prescription”. Counsel invited this Court to consider and affirm the pronouncements by Warsame J.A in his dissenting judgment at the Court of Appeal.
Learned Senior Counsel, Mr. Paul Muite submitted that the appeal was competent, as the Court had to take into account and exclude the time taken in the preparation of the proceedings. Counsel urged that the first respondent herein did not merit penalty for a delay occasioned by the High Court in the preparation of the proceedings, as evidenced by the certificate of delay. Counsel asked the Court to consider the provisions of Articles 50, 159 and 259 of the Constitution of Kenya, which in his view, ruled out a strict application of Section 85A of the Elections Act as it would violate the 1strespondent’s right of access to justice under Article 25 of the Constitution. Mr. Muite urged us to affirm the majority decision which in his view, was the correct reflection of the legal position.
There are two critical questions to be answered at this stage, namely:
(a) What is the legal effect of the provisions of Article 85A(a) of the Elections Act on election-petition appeals?
(b) To what extent, if at all, are the Court of Appeal Rules
Did the Appellate Court admit, hear and determine an incompetent appeal contrary to Section 85A(a) of the Election Act as read with Article 87(1) of the Constitution?
The judgment of the High Court was delivered on 10th September, 2013. The 1st respondent filed at the Court of Appeal a Notice of Appeal against the Judgment and orders of Mwongo J on 12th September, 2013.
Under Section 85A (a), the 1st respondent ought to have filed an appeal within30 days from the date of Judgment in the High Court, that is on 10th of October, 2013. This was however not to be, as the subsequent events now show. On 11th September, a day after the High Court’s judgment, the 1st respondent’s advocates wrote to the Deputy Registrar of the High Court of Kenya requesting typed proceedings in the matter. The Deputy Registrar responded the following day, informing the 1st respondent’s advocates that they would be notified to collect the proceedings once typing of the same was completed. On 9th October, 2013, certified proceedings were ready for collection.
The 1st respondent has met the claim of belated appeal on his part by invoking a “certificate of delay” which was in his possession. The content of the said certificate of delay runs as follows:
“1. An application for proceedings was lodged in Court on 11/9/2013;
“2. Certified copies of proceedings were not ready until 9/10/2013;
“3. Certified copies of the proceedings and ruling were ready on 9/10/2013;
“4. The certificate of delay was prepared and ready for collection on 30/10/2013;
“5. Number of days taken: 49days.”
Armed with a certificate of delay, the 1st respondent then lodged his memorandum of appeal at the Court of Appeal registry on 22nd November 2013 – being 23 days from the date of issue of the certificate of delay.
Section 85A of the Elections Act, under which the 1st respondent’s appeal to the Court of Appeal was to be admitted, provides as follows:
“An appeal from the High Court in an election petition concerning membership of the National Assembly, Senator or the office of county governor shall lie to the Court of Appeal on matters of law only and shall be:
(a) Filed within thirty days of the decision of the High Court; and
(b) Heard and determined within six months of the filing of the appeal to the Court of Appeal.”
It was the appellants’ argument that the appeal was filed after a record 72 days from the date of the Judgment of the High Court. According to the appellants, the mandatory provision of Section 85A (a) of the Elections Act was not adhered to, in contravention of the underpinning constitutional principle of timely resolution of electoral disputes, embodied in Article 87(1). The Appeal was, therefore, incompetent in law. It was urged that the Court of Appeal acted without jurisdiction, by determining an incompetent appeal, the same having been filed outside the mandatory statutory timeline. In canvassing this contention, learned Senior Counsel, Prof. Tom Ojienda submitted that this Court has held that Courts do not have adiscretion to extend mandatory timelines set out in the Elections Act.
Counsel cited a number of authorities including the Joho case, in which this Court affirmed the Court of Appeal’s pronouncement in Ferdinand Waititu v. Independent Electoral and Boundaries Commission & 8 Others Civil Appeal No. 137 of 2013 – that the timelines set by the Constitution and the Elections Act are neither negotiable nor extendable by any Court; Mary Wambui Munene v. Peter Gichuki Kingara & 2 Others S.C Petition No. 7 of 2014 in which this Court was categorical as to the imperatives of timelines demanded by the Constitution, in the settlement of electoral disputes; and Munya 2 in which this Court declared the constitutional basis of Section 85A of the Elections Act, stating that it was “neither a legislative accident nor, a routine legal prescription”. Counsel invited this Court to consider and affirm the pronouncements by Warsame J.A in his dissenting judgment at the Court of Appeal.
Learned Senior Counsel, Mr. Paul Muite submitted that the appeal was competent, as the Court had to take into account and exclude the time taken in the preparation of the proceedings. Counsel urged that the first respondent herein did not merit penalty for a delay occasioned by the High Court in the preparation of the proceedings, as evidenced by the certificate of delay. Counsel asked the Court to consider the provisions of Articles 50, 159 and 259 of the Constitution of Kenya, which in his view, ruled out a strict application of Section 85A of the Elections Act as it would violate the 1strespondent’s right of access to justice under Article 25 of the Constitution. Mr. Muite urged us to affirm the majority decision which in his view, was the correct reflection of the legal position.
There are two critical questions to be answered at this stage, namely:
(a) What is the legal effect of the provisions of Article 85A(a) of the Elections Act on election-petition appeals?
(b) To what extent, if at all, are the Court of Appeal Rules in general, and Rule 82(1) in particular, applicable to electoral disputes before the Court?
In answer to question (a), it is an eminently relevant point that, long before this Court had pronounced itself on the question of timelines in election petitions other than in a Presidential-election petition, the Court of Appeal had already considered the question, and delivered authoritative decisions of merit. Two of these cases are outstanding. In an illuminating declaration of legal principle (which found favour in this Court), the Court of Appeal in Ferdinand Waititu v. Independent Electoral and Boundaries Commission, (IEBC) & Others, Civil Appeal No. 137 of 2013 (Mwera, Musinga and Kiage JJA), stated as follows:
“…These timelines set by the Constitution and the Elections Act are neither negotiable nor can they be extended by any Court for whatever reason. It is indeed the tyranny of time, if we may call it so. That means a trial Court must manage the allocated time very well so as to complete a hearing and determine an election petition timeously. It was therefore imperative that the Elections Petition Rules be amended to bring about mechanisms of expediting trials…”
In Patrick Ngeta Kimanzi v. Marcus Mutua Muluvi &2 Others, Nairobi C.A No.191 of 2013 [2014] eKLR; the Court of Appeal (Kariuki, Kiage and M’Inoti JJA) was again categorical, that the provisions of Section 85Aof theElections Act, setting out timelines for the filing and determination of election petitions, were peremptory and non-negotiable.
The learned Judges of Appeal had the following to say:
“The ruling and order appealed from in Machakos Election Petition No. 8 of 2013 was delivered on 17.6.2013. The appellant filed the appeal on 12.08.2013. The period for lodging appeal expired in July 2013 and clearly the appeal was filed out of time. In Maitha vs. Said and Another, (1999) 2 E.A 181, this Court held that S23(4) A of the National Assembly and Presidential Elections Act, which like S85 A of the Elections Act stipulated the period within which an appeal from the decision of the election court should be filed, was mandatory and that upon the lapse of the stipulated time, the right of appeal automatically lapsed…”
Warsame J.A, in an extensively reasoned dissent in the matter at hand, revisited these cases, acknowledging their merits. The learned Judge thus remarked:
“Having so found, what is the time within which an appeal from the decision of the High Court is to be filed and determined? The answer to this question is to be found at Section 85A(a) which is worded in very clear terms, that an appeal from an election petition ‘shall’ be…filed within thirty days of the decision of the High Court.
“The word ‘shall’ used in Section 85A(a) of the Elections Act connotes an emphatic intention, an expression of strong assertion or command, a duty rather than a wish, required to perform a function in a discretionary manner. In my understanding, the use of words shall and filed within 30 days of the decision of the High Court confer a mandatory sense that the drafters typically intended, and that courts typically must uphold. It means the filing of an appeal from the decision of the High Court is to be done within 30 days. In other words, the filing is to be done within the period, not exceeding or beyond the 30 days from the date when the decision is rendered.”
Such a position is entirely consistent with a number of precedents which have been laid by this Court. In Hassan Ali Joho &Another v. Suleiman Said Shahbal &2 Others, S.C Petition No. 10 of 2013 [2014] eKLR, this Court cited with approval the declaration of legal principle by the Court of Appeal in the Ferdinand Waititu case (quoted above).The Court stated that adherence to the imperatives of time, as decreed by the Constitution, is a vital element in the operation of a democratic system based upon electoral expression.
In Mary Wambui Munene v. Peter Gichuki King’ara & 2 Others S.C. Petition No. 7 of 2014,this Court while annulling the proceedings of the High Court and Court of Appeal in an election petition that had been filed outside the time-frame prescribed in Article 87(2) of the Constitution, stated as follows:
“…Time as a principle, is comprehensively addressed through the attribute of accuracy, and emphasized by Article 87(1) of the Constitution, as well as other provisions of the law. Time in principle and applicability, is a vital element in the electoral process set by the Constitution. This Court’s decision in Joho wasguided by this consideration. For purposes of this case, we apply the precedent in Joho, taking into account that the issue in question involves imperatives of timelines demanded by the Constitution in settling electoral disputes which involve accuracy, efficiency and exactitude, limiting any other considerations, in the exercise of our discretion.”
In Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others S.C. Petition No. 2B of 2014, this Court clearly established the constitutional genealogy of Section 85A of the Elections Act, when it declared that the same was “neither a legislative accident nor a routine legal prescription.” Section 85A, the Court affirmed, “is a product of a constitutional scheme requiring electoral disputes to be settled in a timely fashion.”
In spite of these clear and unambiguous enunciations of legal principle, by both the Court of Appeal and the Supreme Court, regarding the legal effect of Section 85A(a) of the Elections Act, the majority decision of the Appellate Court in this matter not only admitted a petition of appeal which had been filed in contravention of the mandatory provisions of the law but, on the basis of the appeal, annulled the election of the first appellant herein.
The learned Judges on the majority side predicated their decision on two generic inferences: Firstly, that Section 85A(a) of the Elections Act being a statutory timeline, was not as mandatory as the timelines named in the Constitution itself; and so a court of law could extend the period within which an intending petitioner will lodge an appeal beyond the 30-day limit prescribed in the Act. Such an extension, the learned justices of Appeal reasoned, was proper in the interests of justice, especially where there had been delay in the preparation of Court proceedings. Parliament, the learned justices opined, could not have intended to shut out a litigant from filing an appeal, as this would offend other provisions of the Constitution, especially Articles 10, 20 and 25(c).
Secondly, that on the strength of Rule 35 of the Election (Parliamentary and County Elections) Petition Rules, the Court of Appeal Rules are applicable in their totality to election petition appeals before the Court; and so, Rule 82 (1) of the Court of Appeal Rules could apply to extend the time for filing of an election petition appeal beyond the 30-day limit prescribed by section 85A of the Elections Act.
In both respects, we are of the opinion that the learned judges of Appeal, with respect, fundamentally erred in law. In the first instance, the learned judges, upon unspecified grounds, chose to depart from the legal principles established by the Appellate Court itself, and affirmed by this Court, regarding timelines, and without specifically distinguishing the earlier cases in accordance with normal judicial practice. The declaration of legal principle in Ferdinand Waititu, for example, was dismissed out of hand, with bare personal doubts signaled as the cause, in the following passage:
“As a declaration of principle, I believe we were correct in asserting the importance, inviolability even, of the timelines in the Constitution and the Elections Act. As to whether in fact, the same cannot be extended by any Court, for whatever reason as we expressed ourselves, I must admit to some doubts upon further reflection. It is to be remembered that the view we expressed was in fact broad principle or probably orbiter since the only issue that was for determination before us was whether we could entertain appeals from interlocutory decisions of the High Court.”
Such was a fundamental departure, on the basis of mere doubt, not only from the specific enunciation of the legal position in the case in which the learned Judge had participated, but from all the other decisions by the Court of Appeal on a similar question. Of more concern to us is the fact that, the principle from which the learned Judge was declaring a departure, had indeed been affirmed by this Court, in Hassan Ali Joho &Another v. Suleiman Said Shahbal &2 Others, S.C. Petition no. 10 of 2013 [2014] eKLR. What this Court
has affirmed as being a settled statement of the law can neither be broad principle, nor orbiter, before other superior Courts. We now reaffirm the legal principles established by the Court of Appeal in earlier cases, regarding the mandatory nature of the statutory timelines.
It is clear to us that the Court of Appeal’s majority position, even if founded upon notions of “justice and fairness”, had overlooked clear imperatives of the law that are overriding. The learned judges had overlooked the law of precedent, expressly declared in Article 163 (7) of the Constitution. They did not recognize that Section 85A of the Elections Act is directly born of Article 87 of the Constitution. They had not taken into account the fact that ideals of justice are by no means the preserve of the intending appellant, and that they must endure to the electorate as a whole. The learned judges perhaps failed to recognize that the overall integrity of the democratic system of governance is sealed on a platform of orderly process, of which the Judiciary is the chief steward, and in which the course of justice already charted by the superior courts is to be methodically nurtured.
The foregoing principles are well reflected in still further decisions of the Court of Appeal itself. In Basil Criticos v. Independent Electoral and boundaries Commission &2 Others [2014] eKLR, the words of Okwengu JA are illuminating in this regard (paragraph 12):
“Thus under section 85A of the Elections Act, the right to a hearing in regard to an appeal from an election petition is tied to the timelines provided in that Act. In this way the right to a hearing is appropriately balanced with the public interest of expeditious disposal of electoral disputes. This is as it should be, for one party may have brought an appeal, but the outcome affects the interest of the public whose right to representation is in limbo during the pendency of the appeal.”
This leads us to the question regarding the applicability of the Court of Appeal Rules, in relation to the election petition appeals before the Appellate Court. The majority on the Appellate Court Bench held that Rule 82 (1) of the Court of Appeal Rules was applicable to the matter before them, with the effect of setting in motion the computation of time such as would exclude the time taken by the High Court in the preparation of the proceedings.
Rule 35 of the Election Petition Rules stipulates that:
“An appeal from the judgment and decree of the High Court shall be governed by the Court of Appeal Rules”
Rule 82(1) of the Court of Appeal Rules stipulates that:
“Subject to rule 115, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged –
(a) A memorandum of appeal, in quadruplicate;
(b) The record appeal, in quadruplicate;
(c) The prescribed fee; and
(d) Security for the costs of the appeal:
Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.”
If this Rule were to apply to election petition appeals, as the majority decision held it does, it means an election petition appeal can be filed within as much as 60 days of the filing of the Notice of Appeal. The Rule provides in addition, that the time taken to prepare the proceedings be excluded from the computation of the sixty days. This Rule, therefore, ousts the provisions of Section 85A(a) of the Elections Act, regarding the time within which an appeal must be filed. Such a rule if applicable, it is clear to us, would defeat the object of efficient electoral-dispute settlement under the Constitution.
However, the Court of Appeal concluded that Rule 82(1) of the Court of Appeal Rules was applicable to electoral appeal matters before that Court, in the words of the learned Judge, G.B.M. Kariuki, JA:
“If Parliament intended that Rule 82 should be overridden by S. 85 A(a), Parliament could have expressly so stated. It did not. The Court of Appeal Rules were applied wholesale to appeals from the Election Court. That was not purposeless. Admittedly, the Court’s judicial function [is] to interpret the law in a manner that ensures that the intention of the Legislature is given effect… because Parliament could never have intended a conflictbetween the Constitution ….and the Elections Act that regulates the conduct of the electoral process.”
The same position emerges from the Judgment of Kiage, JA:
“There is neither ouster nor replacement of the Court of Appeal Rules. They certainly are not supplanted. What we have is an affirmation and restatement of their application. They are controlling.”
Such a position cannot, in our view, be sustained: for it flies in the face of the time-hallowed principle of “the hier archy of norms.” It is well recognized that an instrument of subsidiary legislation cannot override the provisions of an Act of Parliament. This position is clear from the terms of Section 31 (b) of the Interpretation and General Provisions Act (Cap. 2, Laws of Kenya), which provides:
“Where an Act of Parliament confers power on an authority to make subsidiary legislation, the following provisions shall, unless a contrary intention appears, have effect with reference to the making of the subsidiary legislation –
(c) No subsidiary legislation shall be inconsistent with the provisions of an Act.”
Indeed, judicially, the special status of the diverse elements of the electoral law had already been affirmed by the Court of Appeal in the Ferdinand Waititu case (cited above), as follows:
“The Elections Act and the Rules made thereunder constitute a complete code that governs the filing, prosecution and the determination of election petitions in Kenya. That being the case, any statutory provision or rule of procedure that contradicts or detracts from the expressed spirit of Article 87 (1) and 105(2) and (3) of the Constitution is null and void.”
This Court incorporated precisely such a perception in its recent Judgment in Fredrick Otieno Outa v. Jared Odoyo Okello & 4 Others S.C. No. 10 of 2014, when it thus held (paragraph 77):
“On this account, it makes in our perception, eminent sense that the ordinary rules of procedure, in their full tenor and effect, tend to be ill-suited to the effectuation of substantive aspects of the Elections Act and the Rules made thereunder. It is clear to us, for instance, that Rule 35 of the Elections Petition Rules, in so far as it makes the Court of Appeal Rules applicable to appeals in election-dispute matters, is to be construed only as a supplement to – and not a substitute to- the provisions of the Elections Act. We would state, for the avoidance of doubt, that the importation of the Court of Appeal Rules into the conduct of electoral appeals via Rule 35 of the Election Petition Rules, cannot oust the clear provisions of Section 85A of the Elections Act.”
We would agree with the perception of Warsame JA, regarding the applicability or otherwise of Rule 82 of the Court of Appeal Rules, to election-petition appeals. The learned Judge in his opinion, thus stated (pp. 29-30 of the Judgment):
“Can Rule 82 of the Court of Appeal Rules, 2010 which provides for the certificate of delay, defeat the statutory provisions contained in section 85A of the Elections Act? The answer to this question must be in the negative…Section 85 is the legal foundation and all the rules must be interpreted in a manner that will not displace it….Therefore the Elections Act is the parent Act. It has all the and structures for the filing of the petition which is provided for in the Constitution….The time for lodging and determination of appeals in election disputes is found at section 85A of the Constitution, and a party who (sic) does not comply cannot find refuge in the rules of this Court. It is not tenable to elevate the rules of procedure of the Court above a statutory provision…”
The interplay between electoral dispute-settlement timelines, and other types of dispute-settlement procedures, is a jurisprudential issue that has been experienced in other jurisdictions as well. In Ferdinand Frampton and Others v. Ian Pinard and Others Claim Nos. DOMHCV 2005/0149, the High Court in of the Commonwealth of Dominica held that a petitioner must do everything to lodge his or her petition within the stipulated time, and that an election Court has no power to extend the time prescribed by statute unless such power is expressly conferred upon it. The Court pronounced itself as follows:
“The rationale…is that provisions for the litigation of election petitions are a matter of substantive law, and, like the Statute of Limitation, cannot be dispensed with by the Court. The statutory time limits provide a rigid time table to ensure that everything that is necessary is done, in a timely manner, to bring these petitions to trial because of the public interest requires it…”
In Ezechiel Joseph v. Alvina Reynolds HCVAP2012/0014 the Caribbean Court of Appeal at St. Lucia was faced with several questions, inter alia: whether the Civil Procedure Rules 2000 of 1967 applied in part, or as a whole, to proceedings under the Elections Act; and whether a petitioner, upon giving good reason, could rely on any provision of the Civil Procedure Rules, 2000 to move the Court for an extension of the time prescribed for doing specific acts. The learned Judge, Sir Hugh Rawlins stated as follows:
“In keeping with the strict approach, our Courts have generally insisted that the provisions in elections legislation must be strictly complied with because the paramount public interest is that election challenges should be determined as quickly as possible so that the assembly and the electors should know their rights at the earliest possible time…The election Court has no power to extend time or allow amendments filed out of time unless election legislation so provides” (emphasis supplied).
In the matter before us, it is for certain that the petition of appeal before the Court of Appeal was filed well outside the mandatory time prescribed by Section 85A of the Elections Act. It is also an established fact that the proceedings at the High Court were ready for collection on 9thof October 2013. A certificate of delay was issued on 30thOctober 2013 notwithstanding the fact that the proceedings had been ready for collection on 9thof October. The petition of appeal ought to have been filed on or before the close of day on 10thOctober 2013. Instead, the appeal was not filed until the 22nd of November 2013.
Consequently, and in view of our appraisal of the law, we hold that the learned judges of Appeal erred in law by admitting, and determining an incompetent appeal the same having been filed out of the time prescribed by the peremptory provisions of Section 85A (a) of the Elections Act as read with Article 87 (1) of the Constitution. In so doing, the Court of Appeal acted without jurisdiction. In the circumstances, the majority Judgment annulling the election of the first appellant herein is a nullity for all purposes
ORDERS
(a) The decision of the Court of Appeal delivered on 13th May, 2014 is hereby annulled.
(b) The Judgment of the High Court dated 10th September, 2013 is hereby reinstated.
(c) For the avoidance of doubt, we reaffirm the status of the 1st appellant herein as the duly-elected Governor of Nairobi County as declared by the Independent Electoral and Boundaries Commission (IEBC) on 7th March, 2013, and as published in Kenya Gazette No. 3155 of 13th March, 2013.
(d) Parties shall bear their own respective costs at the High Court, the Court of Appeal and the Supreme Court.
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