Election disputes move under a different legal clock from ordinary civil litigation. Aramat & another v Lempaka & 3 others, decided by the Supreme Court of Kenya in 2014, explains why. The practical legal question was not simply whether an election complaint deserved investigation. It was whether a court had power to hear a petition that reached it after the Constitution’s filing deadline, and whether an appellate court could later repair the problem by ordering a recount. The Supreme Court’s answer was strict: where time is part of the constitutional grant of election jurisdiction, lateness is not an ordinary procedural defect. It can mean that the court never acquired authority to decide the dispute.

How a 36-day filing became the decisive fact

Lemanken Aramat and nine other candidates contested the National Assembly election for Narok East Constituency on 4 March 2013. Aramat was declared the winner with 5,615 votes. Harun Meitamei Lempaka received 5,174, a difference of 441 votes. Lempaka challenged the result and sought, among other remedies, scrutiny and a recount of all 69 polling stations. The constitutional difficulty was timing. He filed his petition in the High Court at Nakuru on 10 April 2013, 36 days after the declaration of the result.

Article 87(2) of the Constitution requires petitions concerning elections other than a presidential election to be filed within 28 days after the election results are declared by the Independent Electoral and Boundaries Commission. The High Court nevertheless heard the case and dismissed it on the merits. On appeal, the Court of Appeal set aside that judgment and directed a recount in the 69 polling stations at the High Court. Aramat then went to the Supreme Court, challenging both the original jurisdiction of the election court and the legality of the appellate remedy.

The first rule: the constitutional doorway can close

The Supreme Court held that the petition had been filed outside the 28-day constitutional period and that the defect went to jurisdiction. The High Court therefore lacked authority to entertain it. Consent, silence, acquiescence or failure to object at the beginning could not supply a jurisdiction that the Constitution had withheld. Article 159(2)(d), which requires justice without undue regard to procedural technicalities, could not be used to enlarge a constitutional time limit that defined the court’s power.

This distinction is crucial. Aramat does not say that every missed procedural step in an election case automatically destroys the proceedings. The real question is what legal function the requirement performs. Some rules regulate the orderly conduct of a case after a court has jurisdiction and may, depending on the governing law and prejudice, admit correction. A constitutional filing period that marks when jurisdiction begins is different. Once that period expires without a valid petition, there is no existing jurisdiction for Article 159 to rescue.

The second rule: an appeal cannot manufacture lost jurisdiction

The Supreme Court also rejected the Court of Appeal’s recount order. By the time the appellate court directed the High Court to undertake substantive election work, the designated election court had already delivered its judgment, and the constitutional period for determination of the parliamentary election dispute had run. The lower court was functus officio and the appellate court could not give it a fresh mandate that the Constitution did not provide. Nor could a different judge simply be assigned the remaining election task outside the legal framework for an election court.

That part of Aramat is useful far beyond the word “recount.” A remedy must be lawful at three points: the court making the order must have power to make it, the court or official receiving the order must still have power to act, and the order must be capable of performance within the applicable time framework. A remedy that looks fair in substance can still be unlawful if its maker, recipient or timing lies outside jurisdiction.

The practical clock under current Kenyan election law

As at this publication date, Kenya Law’s latest available consolidated Elections Act retains the 28-day filing period in section 76 for a petition questioning the validity of an election and provides for service within 15 days of presentation. Section 85A provides that an appeal from the High Court concerning membership of the National Assembly, Senate or the office of county governor lies to the Court of Appeal on matters of law only, must be filed within 30 days of the High Court decision, and must be heard and determined within six months of filing. Those statutory periods sit alongside constitutional time limits, including Article 105(2) for determining parliamentary election questions.

A lawyer should therefore build an election case around a timetable before drafting the allegations. The starting event must be identified correctly, the last filing day calculated, service obligations diarised, security-for-costs requirements checked, and any appeal period recorded before the merits absorb attention. For the Article 87(2) filing period, the Supreme Court’s earlier decision in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others clarified that the operative event is the declaration of results by the returning officer, not a later Gazette publication. Waiting for a Gazette notice can therefore be a fatal mistake where the constitutional clock has already begun.

Why a jurisdiction objection can appear late

Another uncomfortable lesson from Aramat is that a genuine lack of subject-matter jurisdiction does not become valid merely because everyone failed to notice it at the start. The Supreme Court accepted that the issue could be raised when it became apparent on appeal. That does not reward tactical ambush. Counsel should raise jurisdiction at the earliest reasonable moment because late discovery wastes time, money and judicial resources. But the parties’ conduct cannot convert a nullity into a lawful exercise of constitutional power.

For judges, the same point creates an independent responsibility to audit jurisdiction. Before the evidence, scrutiny applications or allegations of electoral wrongdoing consume the case, the court should confirm that the petition was filed in time, that the correct election court is seized, and that the orders being considered remain legally available. The Judiciary of Kenya’s 2022 Bench Book on Electoral Dispute Resolution reflects the continuing importance of disciplined, time-sensitive management of election disputes.

Article 159 is not an all-purpose extension clause

Article 159(2)(d) plays an essential role in preventing justice from being defeated by unnecessary procedural formalism, but Aramat marks its boundary. A constitutional direction that justice should not turn on technicalities is not a power to amend the Constitution from the bench. If the Constitution itself makes 28 days the period within which the election jurisdiction must be invoked, a court cannot call day 36 a technical irregularity and proceed as though the constitutional limit were optional.

That makes it important to label defects accurately. An advocate resisting a procedural objection should ask whether the alleged default actually defines jurisdiction or merely regulates procedure within jurisdiction. An advocate raising the objection should identify the precise constitutional or statutory text that makes the requirement jurisdictional. Aramat is strongest when used for a true limit on judicial power; it should not be stretched into a slogan for striking out every imperfect election filing.

Why the decision matters to voters, not only candidates

Election litigation affects more than the claimant and the declared winner. While a petition remains unresolved, voters and public institutions face uncertainty about who lawfully represents the constituency. Article 87 requires mechanisms for timely settlement of electoral disputes because democratic government needs both accountability and finality. Strict commencement and determination periods are one way the Constitution balances those interests.

For a voter or candidate considering a challenge, the practical message is harsh but clear: legal merit and legal timing are separate requirements. Evidence of a serious electoral grievance does not itself keep the courtroom door open. The first task is to preserve jurisdiction by acting within the applicable constitutional and statutory period. Once that doorway closes, neither agreement between parties nor a creative appellate order can simply recreate the authority that was never validly engaged.

A disciplined way to use Aramat

Aramat should therefore be read as a jurisdiction case before it is read as a lateness case. It teaches courts to distinguish power from procedure, advocates to construct election litigation around the constitutional clock, and appellate courts to keep remedies within their own legal mandate. Its enduring principle is not that procedure always defeats substance. It is that substantive justice must still be delivered by a court that has lawful authority, at a time when that authority exists.

Source note

This article was prepared from Aramat & another v Lempaka & 3 others (Petition 5 of 2014) [2014] KESC 21 (KLR) (6 August 2014); Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] KESC 34 (KLR); the Constitution of Kenya 2010, especially Articles 87, 105 and 159; the Elections Act, Cap. 7, especially sections 76 and 85A in Kenya Law’s latest available consolidated version; and the Judiciary of Kenya, Bench Book on Electoral Dispute Resolution (2022).

Suggested citation

Ronald Serwanga, “Aramat v Lempaka: Kenya Election Deadline Rulebook” East Africa Legal Insight (7 September 2026).

Legal information note: This article is for general legal education and does not constitute legal advice for a specific dispute.