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Supreme CourtAllowedCivil Application 26 of 2018

Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others

Supreme Court of Kenya
7 September 2018
Mohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. NdunguIsaac LenaolaI. Lenaola
2,251 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Supreme Court halts fresh Kilgoris election pending appeal on flawed affidavit.

What this practically means

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The Supreme Court stopped the order for a new election in Kilgoris Constituency while it hears an appeal. The court found that the affidavit filed by the losing candidate was invalid because it was not signed, dated, or commissioned. This meant the court treated it as if no response was filed. The court also said that its own workload is not a reason to grant such orders.

Executive summary

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This is a ruling on a Notice of Motion application by Zadock O. O. Momanyi, the elected Member of the National Assembly for Kilgoris Constituency, seeking stay of execution and conservatory orders against the Court of Appeal judgment of 31st July 2018. The Court of Appeal had nullified his election and ordered a fresh election. The Supreme Court considered the application unopposed after finding the 1st Respondent's replying affidavit fatally defective for being unsigned, undated, and uncommissioned, rendering it and the subsequent written submissions of no legal effect. The 2nd and 3rd Respondents did not oppose the application. Applying the principles from Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Court found that the applicant had an arguable appeal, particularly on whether the election could be nullified on a singular ground of violation of Article 86(a) of the Constitution. The Court also agreed that the appeal would be rendered nugatory without the orders, but clarified that the court's workload is not a legal basis for granting such orders. The Court unanimously allowed the application, staying execution of the Court of Appeal judgment and issuing conservatory orders restraining the IEBC from conducting fresh elections and the Speaker of the National Assembly from notifying the IEBC of the vacancy, pending the hearing and determination of the appeal. Costs were ordered to abide the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has an arguable appeal
  2. 2.Whether the appeal will be rendered nugatory in the absence of stay orders
  3. 3.Whether public interest favours the grant of stay orders

Key legal issues

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01

What is the effect of an affidavit that is not signed, dated, or commissioned?

Holding

Such an affidavit is fatally defective and has no legal value, and any written submissions based on it are also of no effect.

Reasoning

The court examined the Oaths and Statutory Declarations Act, Cap 15, sections 5 and 8, which require an affidavit to state the place and date it was made and to be made before a magistrate or commissioner for oaths. The 1st Respondent's replying affidavit was unsigned, undated, and uncommissioned, violating all these requirements. Consequently, the court deemed it as if no replying affidavit was on record, and since the written submissions were based on this defective affidavit, they too were of no effect.

p. 6
02

What is the threshold for granting stay and conservatory orders in an electoral appeal before the Supreme Court?

Holding

The applicant must demonstrate an arguable appeal, that the appeal will be rendered nugatory without the orders, and that public interest favours the grant of the orders.

Reasoning

The court applied the principles from Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR. It found that the applicant had an arguable case, particularly on whether the election could be nullified on a singular ground of violation of Article 86(a) of the Constitution. The court also agreed that the appeal would be rendered nugatory if the orders were not granted, but clarified that the court's workload is not a legal basis for granting such orders. The court was satisfied that the threshold was met.

p. 6

Legal principles established

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  • An unsigned, undated, and uncommissioned affidavit is legally worthless and cannot be used in court.
  • Written submissions based on a defective affidavit are also void and will be disregarded.
  • To get a stay or conservatory order, you must show an arguable appeal, risk of nugatory outcome, and public interest.
  • The Supreme Court's workload or backlog is not a valid reason to grant a stay or conservatory order.
  • An election can be challenged on a single constitutional violation, but the appeal must still be arguable.

Court orders

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  1. 1.The Notice of motion application dated 8th August, 2018 is allowed.
  2. 2.The execution of the judgement of the Court of Appeal delivered on 31 July, 2018 in Election Petition Appeal No. 11 of 2018 at Nairobi, and the Order derived therefrom be and are hereby stayed pending the hearing and determination of the appeal.
  3. 3.A conservatory order do and is hereby issued restraining the 3rd Respondent, Independent Electoral and Boundaries Commission, from announcing, gazetting, or conducting fresh elections in Kilgoris Constituency for a Member of the National Assembly pending the hearing and determination of the appeal.
  4. 4.A conservatory order do and is hereby issued restraining the Speaker of the National Assembly from giving notice to the 3rd Respondent, Independent Electoral and Boundaries Commission, of the occurrence of the vacancy in Kilgoris Constituency for Member of the National Assembly pending the hearing and determination of the appeal.
  5. 5.Costs of this application to abide the appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Election Petition Appeal No. 11 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit.
p. 6 Defective affidavit
The workload of the Court is not a legal basis for grant of any conservatory orders.
p. 7 Basis for conservatory orders

Key timeline

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2018-07-31
Court of Appeal nullified Zadock Momanyi's election as Kilgoris MP and ordered a fresh election.
2018-08-08
Momanyi filed a Notice of Motion in the Supreme Court seeking stay and conservatory orders.
2018-08-08
Supreme Court allowed the application, staying the Court of Appeal judgment and halting fresh elections pending appeal.

Practical implications

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For lawyers

Affidavit drafting must be flawless

Ensure every affidavit you file is signed, dated, and commissioned before a magistrate or commissioner for oaths. An omission renders the entire affidavit and any submissions based on it void. This case reinforces strict compliance with the Oaths and Statutory Declarations Act. Double-check before filing to avoid fatal defects.

For businesses

Court orders can halt elections

If you are involved in an election dispute, know that the Supreme Court can stop a fresh election while an appeal is pending. You must show the appeal is arguable and that without the order, the appeal would be pointless. Public interest also matters. This can delay outcomes, so plan for extended timelines.

For individuals

Your affidavit must be proper

If you file a court document like an affidavit, it must be signed, dated, and commissioned. If not, the court will ignore it entirely. This could lose your case. Always have a lawyer or commissioner for oaths check your documents before filing.

Frequently asked questions

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What happens if an affidavit is not signed or commissioned in Kenya?+

The court will treat it as if it never existed. It has no legal value, and any arguments based on it are also thrown out. This is because the Oaths and Statutory Declarations Act requires affidavits to be signed, dated, and commissioned by a magistrate or commissioner for oaths.

Can the Supreme Court stop a fresh election in Kenya?+

Yes, the Supreme Court can issue a stay or conservatory order to halt a fresh election while an appeal is pending. The applicant must show the appeal is arguable, that the election would make the appeal pointless, and that public interest supports the order.

What is an arguable appeal in Kenyan election cases?+

An arguable appeal means the case raises a serious legal question worth the court's consideration. For example, whether an election can be nullified based on a single constitutional violation, like ballot box diversion, even if those votes didn't affect the final result.

Does the Supreme Court's workload affect stay orders in Kenya?+

No. The court has clearly stated that its workload or backlog is not a legal basis for granting stay or conservatory orders. You must rely on legal arguments, not the court's schedule.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others", Case Analysis (2018). Civil Application 26 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/58/eng@2018-09-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.