149 4.12.2.3 A certificate of delay from the High Court, which normally excuses the late filing of an appeal in ordinary civil cases, will not suffice to save an EDR appeal filed outside the 30-day period set out in section 85A of the Elections Act, 2011 (Evans Odhiambo Kidero & 4 Others v Ferdinand Ndung’u Waititu & 4 Others, Supreme Court Petition No. 18 of 2014). 4.12.2.4 A party who seeks to object to the competence of an appeal must do so by way of a formal application within 7 days of service of the notice or record of appeal (Rule 17, Court of Appeal (Election Petition) Rules, 2017). Where such an application is not made within the specified period, it may not be raised later (Rule 17(2), Court of Appeal (Election Petition) Rules 2017). 4.12.3 Filing a Supplementary Record of Appeal without Leave 4.12.3.1 Where the High Court does not avail relevant documents, an appellant is allowed to file the record of appeal, followed by a supplementary record of appeal within seven days. 4.12.3.2 The Supreme Court considered whether a supplementary record of appeal filed out of time ought to be struck out in Mawathe Julius Musili v IEBC & Another, Supreme Court Petition 16 of 2018. In this case, one of the issues submitted for determination before the apex Court was whether the Court of Appeal erred by admitting a supplementary record of appeal outside the 30-day timeline provided under section 85A of the Elections Act and Rule 9(1) of the Court of Appeal (Election Petition) Rules 2017. The Court of Appeal had declined to strike it out for reasons that the omission did not go to ‘the root of the appeal, or in any way affect the jurisdiction of the Court.’ 4.12.3.3 The Supreme Court noted that Rule 92(3) of the Court of Appeal Rules 2010 allowed the filing of copies of supplementary records of appeal ‘as soon as may be practical’ and that the Court of Appeal (Election Petition) Rules 2017 had not specified a time limit to file the same. Therefore, since there was no express statutory timeline for filing a supplementary record of appeal, this case was not one where the strict interpretation of timelines could be adhered to as it was in Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others, Supreme Court Petition 18 of 2014 (as Consolidated with Supreme Court Petition 20 of 2014)). 4.12.4 Depositing the Security for Costs 4.12.4.1 Section 78 of the Elections Act, 2011, which requires the deposit of security for costs, only applies to proceedings before an election court. The section does not, therefore, apply to appeals before the Court of Appeal (Lydia Mathia v Naisula Lesuuda & Another, Civil Appeal (Application) No. 287 of 2013). The Court of Appeal, however, requires an appellant to deposit a sum of five hundred thousand shillings as security for costs of an appeal (Rule 27 of the Court of Appeal (Election Petition) Rules, 2017). 4.12.4.2 The decision of the High Court on an appeal from the Magistrates Court is final. The Court of Appeal lacks jurisdiction to hear appeals from County Assembly election petitions (Hassan Jimal Abdi v Ibrahim Noor Hussein and 2 Others, Nairobi Election Petition Appeal No. 30 of 2018; Mohamed Ali Sheikh v Abdiwahab Sheikh & 4 others; Emmanuel Changawa Kombe (Interested Party), Election Appeal (Application) No. 261 of 2018; Hamida Yaroi Shek Nuri v Faith Tumaini Kombe, Amani National Congress & IEBC, Supreme Court Petition No. 38 of 2018; and Peter Bodo Okal v Philemon Juma Ojuok & 2 Others, Supreme Court Election Petition (Application) 9 & 33 of 2019 (consolidated)). BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION