Abdikadir Farah Mohammed & Mohamed Aden Abdi v Independent Electoral and Boundaries Commission, County Returning Officer, Garissa Township, Aden Duale & County Commandant, Garissa County [2018] KECA 411 (KLR) | Notice Of Appeal Requirements | Esheria

Abdikadir Farah Mohammed & Mohamed Aden Abdi v Independent Electoral and Boundaries Commission, County Returning Officer, Garissa Township, Aden Duale & County Commandant, Garissa County [2018] KECA 411 (KLR)

Full Case Text

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: WAKI, MAKHANDIA & MURGOR, JJ.A)

ELECTION PETITION APPEAL NO. 21 OF 2018

BETWEEN

ABDIKADIR FARAH MOHAMMED..............................1STAPPELLANT

MOHAMED ADEN ABDI................................................2NDAPPELLANT

AND

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.....................................1STRESPONDENT

COUNTY RETURNING OFFICER,

GARISSA TOWNSHIP..................................................2NDRESPONDENT

ADEN DUALE...............................................................3RDRESPONDENT

COUNTY COMMANDANT, GARISSA COUNTY...4THRESPONDENT

(An appeal from the Decision of the High Court of Kenya

atGarissa (R. E. Ougo, J) dated 2ndMarch, 2018

in

Election Petition No. 12 of 2017)

**********************

JUDGMENT OF THE COURT

There are several interlocutory applications in this matter which, for good order,we must deal with in limine.  In their nature they raise jurisdictional issues which may well dispose of the main appeal.

The main appeal purports to challenge the election of Mohamed Yusuf Haji(Haji)as the Senator for Garissa County in the general elections that took place on 8th August, 2017. We say "purported" advisedly, because that is one of the issues we have to grapple with in one of the applications. There were six other candidates for that post who lost to Haji, but they did not file any petition to challenge the election. The petition before the High Court, sitting as an election Court, was filed by three voters from the county and they were entitled to do so. One of the petitioners, however, was struck out before the petition was heard, leaving two petitioners. Among the respondents named in the petition was the "County Commandant, Garissa County" whose name was also struck out before the petition was heard and was not henceforth a party in the proceedings. That left the Independent Electoral and Boundaries Commission (IEBC), the Returning Officer, Garissa County (RO), and Haji as the only respondents. Ultimately, the petition was heard and dismissed in a judgment delivered by Rose Ougo, J. on 2nd March 2018. Then the drama began, and hence the interlocutory applications before us.

At the pre-hearing conference, directions were given that the applications and the main appeal be heard together, and indeed they were on 27th June, 2018. Before the hearing, however, an informal application was made by one of the appellants to withdraw the appeal wholly against the respondents and an order was made accordingly there being no objection by the remaining appellant and the respondents. The only appellant in the matter is therefore Mohamed Aden Abdi (Abdi) or (appellant).

The first of the three applications and one notice of Preliminary Objection (PO) filed, was a notice of motion by the appellant dated 9th April, 2018 and filed on the same day, seeking the following orders:-

"1. THAT this Honourable Court be pleased to extend time within which the Applicants/Appellants may file the Notice of Appeal.

2. THAT the Notice of Appeal filed with the record of appeal be deemed as duly filed and served.

3.  THAT the costs of this application be in the course.”

He invoked Article 159 (2) of the Constitution, Rules 3, 4, 5 and 17 of the Court of Appeal (Election Petition Rules) 2017 (CAR 2017). The grounds upon which the motion was filed were that after the judgment was delivered on 2nd March, 2018, a notice of appeal was drawn up on 8th March, 2018, but was not lodged with the court until 13th March, 2018. According to the appellant, the notice of appeal was compliant with the Court of Appeal Rules, 2010 (CAR 2010). The affidavit in support of the motion sworn by Abdi, on information given by his advocates, simply stated that the 7-day period within which a notice of appeal was to be filed under Rule 6 (5) of CAR 2017 lapsed on 9th March, 2018; that the notice of appeal was filed under CAR 2010; that failure to file the notice of appeal within time was an 'inadvertent mistake'; that the notice of appeal was in keeping with the law and there was no prejudice; and that the lapse of time in filing the appeal was a curable procedural technicality.

But Haji, who was served with the motion, objected to it, asserting in his affidavit in reply sworn on 19th April, 2018, that he was served with a notice of appeal on 14th March, 2018; that he filed his notice of address for service; that no appeal was subsequently filed against him although the 30-day window for filing the appeal had expired as at 1st April, 2018; that as a consequence the notice of appeal is deemed to have been withdrawn under Section 85 A (a) of the Elections Act; and that the notice of appeal cannot be extended after the 30-day period had expired.  IEBC also objected on grounds filed on 30th April, 2018 asserting that there was no full, honest and acceptable explanation for the delay in filing the notice of appeal; and that the delay was inordinate and inexcusable. To quote them:-

"The appellants are guilty of laches, having made the application seeking leave to file and serve the notice of appeal out of time 30 days after the 7-day period for filing the notice of appeal had lapsed and 27 days after filing the notice of appeal without leave".

Haji went further and took out his own application dated 5th April, 2018 but filed on 10th April, 2018, seeking the following orders:-

“1. THAT the 1st& 2ndAppellants’ Notice of Appeal dated 8th March, 2018, be deemed as withdrawn as against MOHAMED YUSUF HAJI by virture of Section 85A(a) of the Elections Act, and consequentially, the same be struck out to this extent;

2.  THAT for sufficient cause, the 1st& 2ndAppellants’ Appeal dated and filed on 29thMarch, 2018, be struck out with costs;" Section 85 A (a)of the Elections Act, andRules 8 (5)and17of CAR 2017 were invoked.

The reasons for seeking the orders were that after being served with the notice of appeal and filing his notice of address for service, he became a mandatory party to the intended appeal but none was filed against him long after the 30 days allowable for filing the appeal was past. Instead, on 29th March, 2018, the appellant lodged a record of appeal against the IEBC and three other persons who were not parties to the lower court proceedings, to wit; "Returning Officer, Garissa Township, Aden Duale, and County Commandant, Garissa County".No appeal could lie against such parties by dint of Rule 6 (1) of CAR 2017, and there was therefore no competent appeal against Haji. In his view, the Court lacked jurisdiction to extend time fixed by statute and the notice of appeal served on him was thus for striking out.

In his affidavit in reply, Abdi reasserted that the late filing and service of the notice of appeal was technical and excusable; that the inclusion of the three persons in the memorandum and record of appeal was mere mischaracterization of parties and a curable technical error; that the record of appeal was amenable to amendment and he would apply accordingly; and that substantial justice should trump over procedural lapses since the matter concerned the exercise of political rights and his intention to do so was manifest. He further swore as follows:-

“THAT I am advised by my advocates on record M/s Musyoka Murambi & Associates Advocates, which advice I verily believe to be true that the impugned notice of appeal is compliant with the Court of Appeal Rules 2010 as the Rules Committee does not have authority to promulgate rules under the Elections Act.

THAT I am further advised by my advocates on record M/s Musyoka Murambi & Associates Advocates, which advice I verily believe to be true that the impugned record of appeal is compliant with the Court of Appeal (Election Petition) Rules, 2017, and any mischaracterization of respondents can be cured by a formal application seeking leave to amend the said record pursuant to Rules 16 and 44 of the Court of Appeal Rules 2010".

Finally, he attacked Haji's application for having been filed out of time. It is Haji's application that prompted the filing by Abdi of yet another motion on 17th April, 2018, seeking the following orders:-

“THAT this Honourable Court be pleased to grant leave to the Applicants/Appellants to amend theirRecord of Appeal, Memorandum of Appeal filed on 29thMarch, 2018 and Notice of Motion Application dated 9 April 2018 in terms of the attached Draft AmendedRecord of Appeal, Memorandum of Appeal andNotice of Motion annexed hereto.

THAT the draft amended Memorandum of Appeal filed herewith be deemed as duly filed and served.”

The application was based on asserted facts that there was a record of appeal filed in accordance with CAR 2010 and a motion for extension of time; that both documents contained mistakes in the naming of the respondents; that the mistakes were inadvertent and curable; and that there would be no prejudice if the amendments were allowed.

Finally, IEBC filed a PO on 8th June, 2018 raising the following constitutional issues on the validity of the appeal:

“1.   The Court lacks jurisdiction to hear the Appeal, since there was no valid Notice of appeal filed, the Notice of Appeal on record having been filed at the High Court Registry instead of the Court of Appeal Registry as per the mandatory Rule 6 (2) of the Court of Appeal (Election Petition) Rules, 2017 (“the 2017 Rules”).

2.  The Notice of Appeal filed by the Appellants at the High Court Registry did not comply with the format set out in Form EPA 1 under the 2017 Rules.

3.  By dint of Rule 4 (3) of the 2017 Rules where there is a conflict between 2017 rules and Court of Appeal Rules, 2010 (“the 2010 Rules”), on matters relating to election petition appeals, the provisions of the 2017 rules prevail over the 2010 Rules.”

At the hearing of the applications and the appeal, learned counsel for Abdi, Mr. A. J. Ambanihighlighted the written submissions filed in respect of the two applications filed by Abdi. On extension of time, counsel submitted that there was a notice of appeal on record lodged in accordance with the rules on 9th March 2018 and served on the respondents on 14th March, 2018, which was within five days as the rules require. In the same breath he conceded that the notice of appeal was not in accordance with the CAR 2017 hence the application which, in his view, the Court had jurisdiction under Rule 5 of CAR 2017 to extend time and deem as properly filed. This Court's decision in John Munuve Mati vs Returning Officer Mwingi North Constituency,Independent Electoral & Boundaries Commission & Paul Musyimi Nzengu[2018] eKLRwas extensively relied on for the proposition that the Court had a wide discretion to extend time and sustain the appeal, unless it was prejudicial to the respondents to do so. In counsel's view, the right of appeal was a constitutional one and it would amount to denial of access to justice if it was curtailed.

On the second application for amendment, counsel submitted that Rule 4 (2) of CAR 2017 and Article 159 (2) of the Constitution confer the power on the Court to allow amendments. Rule 4 (2) was invoked because there was no express power given by CAR 2017 for amendment and, therefore, Rule 16 (1) of CAR 2010 may be invoked. In any event, urged counsel, the amendment sought is a mere correction of a clerical error which caused a misnomer. According to Black's Law Dictionary, 9th Edition at page 1015: "..in (federal) pleading -as well as most states- misnomer of the party can be corrected by an amendment which will relate back to the date of the original pleading.."

Furthermore, the treatise "Odgers on Pleadings and Practice" by Casson and Dennis opines as follows:-

“ ... If any party to the action is improperly or imperfectly named on the writ and no change of identity is involved, the misnomer may be corrected in the statement of claim by inserting the right name with a statement that the party misnamed had been sued by the name or the writ...”

The English case of Davies vs Elsby Brothers Ltd [1960] 3 All E.R 672 was also relied on for the principle that 'it is not a question of what the writer of a document meant but what a reasonable man reading the document would understand it to mean'.Two equitable doctrines: that 'a mere false description does not vitiate a document if there is a sufficient certainty as to its contents'and'an error of name is nothing when there is certainty as to the person'were also relied on. Finally counsel invoked Article 159 (2)of the Constitution and the dicta of the Supreme Court inRaila Odinga & 5 Others vs Independent Electoral and Boundaries Commission & 3 Others [2013] eKLRto underscore the approach that courts should not allow the prescription of procedure and form to trump upon the primary object of dispensing substantive justice to the parties.

In response to the application for extension of time, amendment of the application and record of appeal, and in urging the PO, Learned counsel for IEBC and RO, Mr. P. Saende, observed that the notice of appeal in this matter was lodged in the High Court registry in Nairobi on 13th March, 2018 which was 7 days after the time for filing the notice had expired. Furthermore, the application for extension of time was not filed until after one month since the filing of the defective notice. According to counsel, no satisfactory reason was given for such delay and therefore there was no basis upon which this Court could exercise any discretion. Counsel cited the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others [2014] eKLR to underscore that extension of time was not a right and setting out seven principles that a court would consider. He opposed the intended amendment on the ground that there was no provision in the rules to amend election related documents and that the amendment sought here was not about correction of a document but a substitution of parties. The right procedure, according to him, was to withdraw the defective record and re-file a proper appeal. In his view, Article 159 (2) (d) of the Constitution, which was invoked, would not aid the applicant since the Article does not cure all procedural shortfalls and, in any event, the procedural step in issue here was a jurisdictional prerequisite. The Supreme Court decision in Patricia Cherotich Sawe vs Independent Electoral & Boundaries Commission (IEBC) & 4 Others[2015] eKLRwas cited in aid.

More fundamentally, urged counsel, there was no notice of appeal upon which the discretion to extend time could be based under Rule 17 of CAR 2017. That is because, as conceded, the notice of appeal was filed in the High Court contrary to Rule 6 (2)of CAR 2017; the notice did not comply with the format prescribed under the rules; and failure to file a valid notice of appeal deprived the court of jurisdiction. Two recent decisions of this Court were relied on: Musa Cherutich Sirma vs Independent Electoral and Boundaries Commission & 2 Others [2018] eKLRandLesirma Simeon Saimanga vs Independent Electoral and Boundaries Commission & 2 Others[2018] eKLR.

Taking up the objections to the validity of the appeal and urging the application to strike out, learned counsel for Haji, Mr. D. G. Ngaca, submitted that at the heart of the applications, was the jurisdiction of this Court under Section 85 A (a) of the Elections Act. He argued, firstly, that an election petition appeal may only be initiated by a compliant notice of appeal lodged under Rule 6 (1) and 6 (3) (c) and (d) of CAR 2017. The notice of appeal should contain the grounds of appeal and that is why Rule 8 (1)had no provision for a 'memorandum of appeal'. Those requirements, in counsel's view, make a notice of appeal the key document without which the jurisdiction of the Court under Section 85 A does not crystallize. Counsel further submitted that a non-compliant notice of appeal that is not rectified within the mandatory 30-day period for filing an appeal renders any purported appeal still-born. In his view, the notice of appeal in issue here was fatally and irredeemably defective in fact and in law. It was incapable of validation by extension of time.

Turning to the amendment of the record, counsel submitted that the appeal makes no reference to Haji and it cannot therefore be said that there was an appeal against him. That became apparent when Haji was belatedly served with the record of appeal on 3rd April, 2018 and he proceeded, within the seven days required under the rules, to file the application for striking out. In counsel's submission, thirty days had expired after the judgment sought to be challenged and, therefore, the notice of appeal was deemed to have been withdrawn. There was also no jurisdiction to file an appeal against Haji. As it is, the record of appeal filed against persons who were not parties to the election petition was incompetent and the court has no jurisdiction to adjudicate on it.

The Nigerian case of Goodwill & Trust Investment Ltd & Another vs Bush Ltd (2011) LPELR-SC 266/2005was relied on for the following dicta:-

“It is trite law that for a court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the court as it goes to the foundation of the suit in limine. Where proper parties are not before the court, then the court lacks jurisdiction to hear the suit.”

In conclusion, counsel contended that as no appeal exists upon which the applications made by the appellant can be grounded, they are hanging in the air and are for striking out. The court can only exercise jurisdiction on matters filed within the 30-day window for filing appeals. On that score, the application of Article 159 of the Constitution and the decision of this Court in the John Mati case (supra) were distinguishable.

We have anxiously considered all those interlocutory matters, which are inevitably intertwined. In the end, however, we have come to the conclusion that the jurisdiction of this Court was not properly invoked and the application made by Haji for striking out the appeal, as well as the Preliminary Objection raised by IEBC are meritorious. It would also follow that the appellant's applications are for dismissal. There is precedent to the reasoning we have adopted and we find no good reason to depart from those precedents.

The precedents are the Musa Sirma case (supra) and the Lesirma Saimanga case (supra)which are relied on by IEBC. They considered purported notices of appeal which had been filed in contravention of Rule 6 of CAR 2017 and the Court was of the view that a notice of appeal was foundational to any valid appeal, and had indeed been characterized by the Supreme Court as "a jurisdictional pre-requisite" in the case ofNicholas  Kiptoo  Arap  Korir   Salat  vs   Independent  Electoral   and  Boundaries Commission & 7 Others[2014] eKLR. More recently, the majority of this Court followed those decisions in the case of Apungu Arthur Kibira vs IEBC & 2 Others, EPA No. 11 of 2018 (UR).  We may borrow some relevant portions of the reasoning inextenso:-

"A court’s jurisdiction flows from either the Constitution or legislation or both" and a court"cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law." This was emphatically stated by the Supreme Court in Samuel Kamau Macharia and Another vs Kenya Commercial Bank and 2 Others [2012] eKLR.... Matters election, election petitions and election petition appeals in particular, are sui generis. They cannot be placed on the same plane with ordinary civil appeals. Indeed, in tandem with the operational rules they are christened "Election Petition Appeals", not "Civil Appeals". That view was also held by this Court (differently constituted) in the case of Rozaah Akinyi Buyu vs Independent Electoral and Boundaries Commission & 2 Others [2014] eKLRwhich held that'courts in Kenya and elsewhere have interpreted electoral law strictly within the corners and confines of the same as electoral law is a special jurisdiction created by the Constitution and statutes, and the civil process is not applicable to the same'. The court cited with approval the Indian Supreme Court case of Tyota Basu & Others vs Debi Ghosal & Others 26thFebruary, 1982, which pronounced itself on Indian electoral legislation(Representation of the People Act, 1951),and held as follows:-

“....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 statutory (sic) 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, Court is put in a straight jacket."

And so it is that in ordinary civil appeals, this Court retains a wide discretion under sections 3A and 3B of the Appellate Jurisdiction Act and of Rule 1 (2) of CAR 2010 to facilitate the just, expeditious, proportionate and affordable resolution of disputes. The doctrines of equity reign large and that is the philosophy behind the decisions on extension of time made under Rule 4 of CAR 2010 ..... The only limitation is that the Court's discretion be exercised judiciously.

As regards the jurisdiction of the court in electoral disputes, it is rooted in Article 164 (3) and operationalized through legislation enacted under Article 87 (1) of the Constitution which requires Parliament to "enact legislation to establish mechanisms for timely settling of electoral disputes". The statutory provisions, regulations and rules relating to electoral disputes may therefore, in a manner of speaking, be said to be 'normative derivatives' of the Constitution. Section 85 A of the Elections Act restricts and confines the appellate jurisdiction of the court to matters of law only. As regards the "Notice of Appeal"..... it has been declared by the Supreme Court to be a jurisdictional issue and not a technical matter of procedure. The court so stated in the case of Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, thus:

"A Notice of Appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite. The California Supreme Court while reversing the Court of Appeal decision that had dismissed the appellant’s notice of appeal as having been filed out of time in Silverbrand vs County of Los Angeles (2009) 46 Cal. 4th106, 113 stated inter alia:

“As noted by the Court of Appeal, the filing of a timely notice of appeal is a jurisdictional prerequisite. “Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (sic) The purpose of this requirement is to promote the finality of judgements by forcing the losing party to take an appeal expeditiously or not at all.”

[Emphasis added].

The Supreme Court also, in the case of Independent Electoral & Boundaries Commission vs Jane Cheperenger & 2 Others [2015] eKLR, emphasized that without filing a notice of appeal, there can be no expressed intention to appeal.

The dichotomy in the treatment of notices of appeal filed under CAR 2010 and those filed under CAR 2017 was aptly captured recently by this Court in the case of John Munuve Mati vs Returning Officer Mwingi North Constituency, Independent Electoral & Boundaries Commission & Paul Musyimi Nzengu

[2018] eKLR when it stated:

"The 2010 rules regulates the filing of all appeals in this Court. In general appeals, there is no serious time constraint. Parties have as many as 14 days to file a notice of appeal and 60 days thereafter to file the record of appeal. Where a party has applied for proceedings and complied with rule 82, the record of appeal can be filed even three or five years later so long as there is a certificate of delay. That luxury is not available in an election petition appeal. By dint of section 85A of the Elections Act, an election petition appeal must be filed within 30 days from the date of the judgment of the High Court and heard and determined within 6 months from the date it was filed. This commitment to timely resolution of election disputes stems directly from the Constitution where Article 87 specifically mandates Parliament to enact legislation to establish mechanisms for timely settlement of electoral disputes. We believe that it was that appreciation that informed the decision of the Rules Committee to promulgate dedicated Court of Appeal rules to specifically regulate the filing of election petition appeals."

[Emphasis added].

What then is the place of Article 159 (2) (d) of the Constitution which was heavily relied on by the applicant in this matter? More than five years ago in 2013, it was declared by the Supreme Court that the Article was not a panacea for all procedural infractions and that it'simply means that a court of law should not pay attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from courts of law." The Court stated thus:

“Indeed, this Court has had occasion to remind litigants that Article 159 (2) (d) of the Constitution is not a panacea for all procedural shortfalls. All that the Courts are obliged to do, is to be guided by the principle that “justice shall be administered without undue regard to technicalities”. It is plain to us that Article 159 (2) (d) is applicable on a case by case basis.”

See  Raila  Odinga  &  5  Others  vs  Independent  Electoral  and Boundaries Commission & 3 Others[2013] eKLR."........

So that, the issue before us is not one of a procedural technicality capable of being cured under Article 159 of the Constitution. The observation of the Supreme Court in the case of Lemanken Aramat vs Harun Meitamei Lempaka & 2 Others [2014] eKLR is worth remembering that:-

“.. the electoral process, and the electoral dispute-resolution mechanism in Kenya, is marked by certain special features. A condition set in respect of electoral disputes, is the strict adherence to the timelines prescribed by the Constitution and the electoral law. The jurisdiction of the Court to hear and determine electoral disputes is inherently tied to the issue of time, and a breach of this strict scheme of time removes the dispute from the jurisdiction of the Court. This recognition is already well recorded in this Court’s decisions in the Joho case and the Mary Wambui case”.

We respectfully adopt the above reasoning.

Adverting to the matter before us, the applicable rules are CAR 2017 which were published in Legal Notice No. 114 of 2017 and became operational on 28th July, 2017. That was more than eight months before the decision in the election Petition was made. There is no assertion by the appellant or his counsel, that they were unaware of the existence of those Rules, and even if there was, we would not take them seriously. The argument is rather that the notice of appeal was competent because it was filed and served in accordance with CAR 2010. But the contention obviously flies in the face of the provisions of Rule 4 (3) of CAR 2017 which provides:-

"Where there is a conflict between 2017 rules and Court of Appeal Rules 2010 on matters relating to election petition appeals the provisions of the (2017) rules shall prevail over the 2010 rules."

Under CAR 2017 this Court has the jurisdiction to 'extend or reduce' the time prescribed by the Rules, except for timelines set by the Constitution and the Elections Act, 2011. The power is inRule 17 (1), which must be read together withRule 3which provides:

"The object of these Rules is to facilitate the just, expeditious and impartial determination of election petition appeals in exercise of the Court's appellate jurisdiction under Article 164 (3) of the Constitution." and Rule 5:

"The effect of any failure to comply with these rules shall be a matter for determination at the Court's discretion subject to the provisions of Article 159 (2) (d) of the Constitution and the need to observe the timelines set by the Constitution or any other electoral law."

In our view, the combined effect of those provisions is to restrict the court to consideration of appeals and applications which are filed before it in accordance with electoral laws. A good illustration is the John Mati case (supra) which was correctly decided as it considered extension of time for filing a 'notice of appeal' which was properly filed before the court, albeit late. The court had the jurisdiction to consider the failure to comply with the rules because there was a notice of appeal lodged before it. But the case before us is different.

A valid notice of appeal is one ".. lodged in accordance with rule 6" CAR 2017, which provides:-

“6(1) A person who desires to appeal to the Court shall file a notice of appeal, which shall be lodged in quadruplicate in the registry.

(2) A notice of appeal shall be filed within seven days of the date of the decision appealed against.

(3) A notice of appeal shall be in separate numbered paragraphs and shall -

(a)  Specify whether all or part of the judgment is being appealed and, if part which part;

(b) Provide the address for service of the appellant and state the names and addresses of all persons intended to be served with copies of the notice; and

(c) Contain a request that the appeal be set down for hearing in the appropriate registry.

(4) It shall not be necessary that the decree or order be extracted before lodging a notice of appeal.

(5) A notice of appeal shall be substantially in the Form EPA 1 set out in the schedule and shall be signed by or on behalf of the appellant.”

[Emphasis added]

"Registry" is also defined to mean the Court of Appeal registry.

We may reproduce the document filed in this matter, and headed "Notice of Appeal" :

“NOTICE OF APPEAL

(Under Rule 75 of the Court of Appeal Rules, 2010)

TAKE NOTICE that the Petitioners herein, ABBIKADIR FARAH MOHAMED and MOHAMED ADEN ABDI being dissatisfied with the decision of the Honourable Lady Justice R.E. Ougo given in Nairobi on the 2 March, 2018, intends to appeal to the Court of Appeal against the whole of the said decision.

The address of service for the Appellants is care ofM/S MUSYOKA MURAMBI & ASSOCIATES, THE WATERMARK BUSINESS PARK, LANG’ATA ROAD/ NDEGE ROAD JUNCTION, SPRING COURT, SUITE TWO, P.O Box 38632 – 00100, NAIROBI. Email Address: info@musyokamurambi.com; TEL: 0704543768.

It is intended to serve copies of this Notice on:-

1. WETANG’ULA ADAN & CO. ADVOCATES

BRUSE HOUSE, 12TH FLOOR STANDARD STREET

P.O BOX 10741 – 00100

NAIROBI

2. GARANE & SOMANE ADVOCATES PITMAN HOUSE, 1ST FLOOR

JAKAYA KIKWETE ROAD (OFF STAE HOUSE ROAD) P.O BOX 20617 – 00100

NAIROBI

DATED at NAIROBIthis 8 day of MARCH 2018.

MUSYOKA MUKAMBI & ASSOCIATES

ADVOCATES FOR THE PETITIONERS

TO:

The Deputy Registrar of the High Court at NAIROBI LODGE in the High Court of Kenya at Nairobi this 13TH day of MARCH 2018

____________________

DEPUTY REGISTRAR

HIGH COURT OF KENYA NAIROBI”.

Quite plainly, it answers to none of the prerequisites set out in Rule 6 and it cannot therefore be the 'Notice of Appeal" envisaged therein.  It seeks to appeal 'against the whole decision', including factual matters, which do not lie in this Court; it has no numbered paragraphs specifying any issues of law to be raised; it was lodged in the High Court and not in the Court of Appeal registry; it was lodged on 13th March, 2017 outside the period prescribed for filing it; and it was admittedly served late on 14th March, 2017 contrary to Rule 7 (1) CAR 2017, among other irreversible defects. The applicant seeks leave to file a fresh notice of appeal but does so after the statutory timeline of 30 days had expired. There is no jurisdiction to extend that period. In those circumstances, the submissions of Haji and IEBC that the document filed was a nullity as it purports to be a notice of appeal filed under the rules, is meritorious. It follows that no notice of appeal was filed in this matter and the court has no jurisdiction to consider the extension of time as sought. The Court must down its tools. With that finding, the request by the appellant for amendment of the record and the request by Haji to strike it out also dissipate.

Having decided the interlocutory matters in favour of the affected party (Haji) and IEBC, it would serve no purpose to delve into the merits of the main appeal which stands struck out by virtue of those findings. Accordingly, we order that the record of appeal lodged in this Court on 29th March, 2008, be and is hereby struck out.

Summary of final orders:

1.  The notice of motion by Mohamed Aden Abdi dated and filed on 9thApril, 2018 be and is hereby dismissed.

2.  The notice of motion by Mohamed Aden Abdi dated and filed on 17thApril, 2018 be and is hereby dismissed.

3.  The notice of preliminary objection filed by the Independent Electoral and Boundaries Commission and the Returning Officer, Garissa County (1st& 2ndrespondents), on 8thJune 2018, be and is hereby upheld.

4.  The record of appeal dated and filed in the Court of Appeal at Nairobi on 29thMarch, 2018 be and is hereby struck out.

5. The costs of the applications and the struck out appeal shall be borne by Mohamed Aden Abdi, the sole remaining appellant.

Dated and delivered at Nairobi this 27thday of July, 2018.

P. N. WAKI

....................................

JUDGE OF APPEAL

ASIKE-MAKHANDIA

...................................

JUDGE OF APPEAL

A. K. MURGOR

....................................

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR