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Suleiman Said Shabhal v. Independent Electotal & Boundaries Commission, Mwadime Mwashigadi , Hassan Ali Joho & Hazel Ezabel Nyamoki Ogunde

(2014) JELR 96298 (CA)

Court of Appeal  •  Civil Appeal 42 of 2013  •  23 Apr 2014  •  Kenya

Coram
David Kenani Maraga, Agnes Kalekye Murgor, Kathurima M'inoti

Judgement

RULING OF THE COURT

The appellant, Suleiman Said Shabhal, insists that we must hear his appeal on merit, notwithstanding the fact that the Supreme Court, on 4th February, 2014, in HASSAN ALI JOHO and ANOTHER v. SULEIMAN SAID SHAHBAL and 2 OTHERS, SC Petition No 10 of 2013, declared unconstitutional section 76(1) (a) of the Elections Act, 2011, upon which the petition giving rise to this appeal was founded. He asserts that while aware that this appeal was pending before this Court, the Supreme Court merely declared S. 76(1) (a) unconstitutional without striking out this appeal, an option that was available to the apex Court under the Supreme Court Act, 2011. To the appellant, that fact in itself is sufficient authority from the Supreme Court that his appeal must be heard and determined on merit by this Court.

The respondents argue in reply that, the effect of the Supreme Court’s judgment is to render the appellant’s appeal constitutionally and legally untenable. The legal foundation upon…

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