The Court of Appeal (Election Petition) Rules

Section 1. Citation Section These Rules may be cited as the Court of Appeal (Election Petition) Rules.

Section 2. Interpretation Section In these Rules, unless the context otherwise requires— "advocate" means a person who has the right of audience before the Court under rule 25 of the Court of Appeal Rules (sub. leg); "appeal" means an appeal from the decision of the High Court; "Commission" means the Independent Electoral and Boundaries Commission established under Article 88 of the Constitution; "Court" means the Court of Appeal; "judge" means a judge of the Court; "notice of appeal" means notice lodged in accordance with rule 6; "notice of cross-appeal" means a notice lodged in accordance with rule 10 (4); "Registrar"means the Registrar of the Court and includes a deputy registrar; "registry" means the registry of the Court and includes a sub-registry; and "respondent" includes any person on whom a notice of appeal has been served and any person other than the appellant on whom a notice of cross-appeal has been served.

Section 3. Object Section 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.

Section 4. Application Section 4(1) These Rules apply to the conduct of appeals from decisions of the High Court in election petitions and matters relating thereto. Section 4(2) Where there is no applicable provision in these Rules, the provisions of the Court of Appeal Rules (sub. leg) relating to civil appeals shall apply to an election petition appeal in so far as they are not inconsistent with these Rules. Section 4(3) Where there is a conflict between these Rules and the Court of Appeal Rules (sub. leg) on matters relating to election petition appeals, the provisions of these Rules shall prevail. Section 4(4) A decision of the Court that a provision of one set of Rules prevails over another provision does not invalidate the latter provision, but the latter provision shall be inoperative to the extent of the inconsistency.

Section 5. Non-compliance with Rules Section 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.

Section 6. Filing of notice of appeal Section 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. Section 6(2) A notice of appeal shall be filed within seven days of the date of the decision appealed against. Section 6(3)(a) specify whether all or part of the judgment is being appealed and, if part, which part; Section 6(3)(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 Section 6(3)(c) contain a request that the appeal be set down for hearing in the appropriate registry. Section 6(4) It shall not be necessary that the decree or order be extracted before lodging a notice of appeal. Section 6(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.

Section 7. Service of notice of appeal Section 7(1) The appellant shall serve the notice of appeal upon all affected parties within five days from the date of filling the notice. Section 7(2) A person served with a notice of appeal shall file and serve upon all the other parties a notice of address for service within five days from the date of service of the notice of appeal. Section 7(3)(a) direct service; or Section 7(3)(b) publication in a newspaper of national circulation. Section 7(4)(a) delivery at the constituency, county or head office of the Commission; Section 7(4)(b) delivery at such other office as the Commission may notify; or Section 7(4)(c) publication in a newspaper of national circulation. Section 7(5)(a) in Form EPA 3 set out in the Schedule; Section 7(5)(b) of at least font size twelve; and Section 7(5)(c) captured in dimensions of not less than ten by ten centimetres. Section 7(6) The Court may direct that the notice of appeal be served on any person who is not a party and may make such interim orders as the Court considers just.

Section 8. Contents of record of appeal Section 8(1)(a) an index of all the documents in the record with the numbers of the pages at which they appear; Section 8(1)(b) a statement showing the address for service of the appellant and the address for service of the respondent being his last known address and proof of service on the respondent of the notice of appeal; Section 8(1)(c) the pleadings; Section 8(1)(d) the trial judge's notes of the hearing; Section 8(1)(e) the transcript of any shorthand notes taken at the trial; Section 8(1)(f) the affidavits read and all documents put in evidence at the hearing, or, if such documents are not in the English language, certified translations thereof; Section 8(1)(g) the judgment; Section 8(1)(h) certified copy of the decree or order; Section 8(1)(i) the notice of appeal; and Section 8(1)(j) such other documents, if any, as may be necessary for the proper determination of the appeal, including any interlocutory proceedings which may be directly relevant: Section 8(2) A judge or Registrar may, on the application of any party, direct which documents or parts of documents should be excluded from the record and an application for such direction...

Section 9. Filing and service of record of appeal Section 9(1) The record of appeal shall be filed within thirty days from the date of the judgment of the High Court. Section 9(2) The appellant shall serve a copy of the record of appeal on all the parties named in the notice of appeal within five days of filing of the record of appeal.

Section 10. Notice of cross-appeal or notice of grounds for affirming decision Section 10(1) A respondent who desires to contend at the hearing of an appeal that the decision of the High Court or any part thereof should be varied or reversed, either in any event or in the event of the appeal being allowed in whole or in part, shall give notice to that effect, specifying the grounds of his contention and the nature of the order which he proposes to ask the Court to make, as the case may be. Section 10(2) A respondent who desires to contend on an appeal that the decision of the High Court should be affirmed on grounds other than or additional to those relied upon by that court shall give notice to that effect, specifying the grounds of his contention. Section 10(3) A notice given by a respondent under this rule shall state the names and addresses of any persons intended to be served with copies of the notice and shall be lodged in quadruplicate with the Registrar within seven days after service on the respondent of the record of appeal. Section 10(4)(a) be signed by or on behalf of the respondent; Section 10(4)(b) identify the part of the judgment sought to be varied; Section 10(4)(c...

Section 11. Service of notice of cross-appeal or notice of grounds for affirming decision Section A notice of cross-appeal or notice of grounds for affirming a decision on grounds other than those relied on by the High Court shall be served within five days after being lodged in the registry.

Section 12. Style of cause in appeal Section the name of the appellant together with the designation "Appellant"; and

Section 13. Sittings of the Court Section The sittings of the Court and the matters to be disposed of at such sittings shall be determined by the President of the Court in consultation with the Chief Justice and shall be notified to the public in such manner as the Chief Justice may direct but nothing in this Rule shall preclude the Court from disposing of any business that has not been so notified.

Section 14. Hours of lodging documents Section The President of the Court may adjust and direct the hours during which the registry shall be open for the receipt of documents concerning election appeals to cater for increased or anticipated increase in the number of cases.

Section 15. Acceptance of documents lodged out of time Section The Registrar shall not refuse to accept any document on the ground that it is lodged out of time but shall stamp on the document, the date on which it is presented, mark on it "LODGED OUT OF TIME" and inform the person lodging it.

Section 16. Maintenance of election appeals register Section 16(1) The Registrar shall maintain an Election Appeals Register, in which shall be entered particulars of every election petition appeal to the Court. Section 16(2) The register under sub rule (1) shall show the number of the election petition appeal, the number of the petition in the High Court, the names of the parties and the dates when the essential steps in the proceedings were taken. Section 16(3) The register shall also contain, against the entry relating to each appeal, a reference to every application made in relation to that appeal, whether made before or after the institution of the appeal.

Section 17. Extension or reduction of time Section 17(1) The Court may, for sufficient reason, extend or reduce the timelines prescribed by these Rules upon such terms and conditions it may deem just and expedient, and a reference in these Rules to any time shall be construed as a reference to that time as extended or reduced. Section 17(2) Sub-rule (1) does not apply to timelines set by the Constitution and the Elections Act (Cap. 7).

Section 18. Stay of execution Section 18(1) The filing and service of a notice of appeal stays the execution of any judgment, decree, order or direction from the High Court pending the determination of the appeal. Section 18(2) Sub-rule (1) shall cease to apply if no record of appeal is filed within thirty days from the date of the judgment of the High Court.

Section 19. Application to strike out notice of appeal or appeal Section 19(1) A person affected by an election petition appeal may, within seven days from the date of service of the notice of appeal or record of appeal, as the case may be, apply to the Court to strike out the notice or the record of appeal on the ground that no appeal lies or that some essential step in the proceedings has not been taken within the time prescribed by these Rules. Section 19(2) Where no application is filed within the period stipulated under sub-rule (1), a person may not raise the issue later.

Section 20. Pre-hearing conference Section 20(1) Within twenty-one days of the filing of the record of appeal, the Court shall schedule a pre-hearing conference. Section 20(2)(a) framing contested and uncontested issues in the appeal; Section 20(2)(b) considering consolidation of appeals in cases where more than one appeal is filed; Section 20(2)(c) giving directions specifying the place and time of the hearing of the appeal; Section 20(2)(d) giving directions on the hearing and determination of interlocutory applications, if any; Section 20(2)(e) directing the Commission on the handling of all relevant election materials and documents relating to the appeal before commencement of the hearing; Section 20(2)(f) giving directions on whether the appeal shall be heard by oral or written submissions; Section 20(2)(g) determining the form and period within which written submissions are to be filed and exchanged; Section 20(2)(h) determining whether or not the written submissions shall be highlighted orally; and Section 20(2)(i) making such other orders as may be necessary to ensure a fair determination of the appeal.

Section 21. Entering an appeal for hearing Section After the conclusion of the pre-hearing conference and any other preliminary matters, including disposing of interlocutory applications, the Court shall commence the hearing of the appeal.

Section 22. Hearing to be on day-to-day basis Section 22(1) Save in exceptional circumstances as may be determined by the Court, the hearing of a petition once commenced shall proceed uninterrupted on a day-to-day basis until its conclusion Section 22(2) Despite sub-rule (1), the Court may, where circumstances demand, adjourn for not more than five consecutive days.

Section 23. Duration for hearing and determination of election petition appeals Section An appeal filed under these Rules shall be heard and determined within six months of the date of judgment of the High Court.

Section 24. Recess and leave Section The President of the Court shall, in consultation with the Chief Justice, schedule the recess and terms of leave for the judges of the Court in a manner that ensures that no Court recess or leave coincides with the period within which appeals from petitions relating to a general election are expected to be filed.

Section 25. Prohibition of delayed interlocutory applications Section The Court shall not allow any interlocutory application made after the hearing of the appeal has commenced if the interlocutory application could have, by its nature, been brought before the commencement of the hearing.

Section 26. Orders of the Court Section dismissing the appeal;

Section 27. Security for costs Section 27(1) The appellant shall, upon filing an appeal, deposit a sum of five hundred thousand shillings as security for costs of the appeal. Section 27(2) If no security is given, the Court may, on its own motion or on an application by the respondent, issue an order directing the dismissal of the appeal and for payment of the respondent's costs. Section 27(3) The Court may, at any time if it thinks fit, direct that security be given for the payment of past costs relating to the matters in question in the appeal. Section 27(4) The Registrar may pay costs from the sum deposited as security for costs either by consent of the parties or in conformity with the decision of the Court and having regard to the rights of the parties thereunder.

Section 28. Review of Rules Section The Rules Committee may review these Rules from time to time.