Rotich Samuel Kimutai v Ezekiel Lenyongopeta & 2 others [2005] KECA 96 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that missing the strict three-day deadline to deposit election petition security kills the petition, regardless of excuses.
What this practically means
#Executive summary
#Key legal issues
#What constitutes a valid ‘deposit of money’ under section 21(2) of the National Assembly and Presidential Elections Act?
Cash, a banker’s cheque or a personal cheque each suffices; ‘money’ is not confined to coins and banknotes, and only where the practice of the court is not to accept personal cheques must payment be in cash or by banker’s cheque.
‘Money’ is undefined both in the Act and in the Interpretation and General Provisions Act, Cap 6. Adopting a purposive rather than purely literal construction, the court reasoned that Parliament could not have intended petitioners to carry coins or banknotes worth Kshs 250,000 into the court registry with all the attendant security risks; had it intended that, it would have provided for ‘ready money’, the definition of ‘cash’. Relying on Re Collings, ‘money’ in its strict legal sense includes money on deposit or current account at a bank, one way of withdrawing which is by cheque.
Is failure to give security for costs within the three days prescribed by section 21 fatal to the petition?
Yes. The time limit is peremptory and admits of no ambiguity; section 21(3) provides the consequence that no further proceedings shall be had on the petition, and non-compliance is not a waivable irregularity.
The court found Parliament’s intention clear from the peremptory language ‘Not more than three days….. shall give’, which does not admit of ambiguity or further search for intention. Whether Parliament should have provided for extension of time was academic since no extension was sought. Sub-section (3) prescribes the consequence of non-compliance: no further proceedings on the petition, with dismissal on the respondent’s application. The deposit, payable until 1st February 2003, was only made on 20th March 2003, so the consequence took effect.
Was a deposit of security for costs made on 29th January, 2003 when the petition was presented?
No. The Election Court’s finding that no payment was made at filing was upheld; the alleged personal cheque was returned on 3rd February 2003, no receipt or register entry was made under Rule 12, and the appellant’s own affidavit confessed the deposit could not be raised.
The appellant’s advocate said nothing about any deposit when he first appeared before the election court and instead conceded that none had been paid. The affidavit sworn on 25th July 2003 admitted the security deposit was unavailable at filing. No receipt was issued by the Registrar and no entry was made in the book required by Rule 12. Even on the appellant’s own version, the returned cheque could have been encashed or converted into a banker’s cheque within time; nothing happened until 20th March 2003. The first ground of appeal was therefore rejected.
Whether the Court of Appeal should rule on the constitutional challenge to section 21 pending before a Constitutional Court
No. The court declined to express any view on the pending reference so as not to prejudice its hearing by the Constitutional Court.
Counsel for the appellant disclosed that a reference was pending before a Constitutional Court seeking declarations that section 21 offends the separation of powers, obstructs access to the High Court under section 60(1) of the former Constitution, and unreasonably restricts the right to stand for parliamentary election. The court considered any expression of view on the merits unnecessary for resolving the present appeal and potentially prejudicial to the pending reference, and expressly reserved its position.
Legal principles established
#- For the purposes of section 21(2) of the National Assembly and Presidential Elections Act, security for costs by ‘deposit of money’ is validly given in the form of cash, a banker’s cheque or a personal cheque, unless the practice of the court is not to accept personal cheques, in which case payment must be made in cash or by banker’s cheque.
- The three-day period prescribed by section 21(1) for giving security for costs is peremptory; failure to comply attracts the consequences in section 21(3) and is not a mere irregularity that can be waived by the parties.
Court orders
#- 1.Appeal dismissed.
- 2.Costs of the appeal to the respondents.
- On appeal from
- High Court of Kenya at Eldoret
- High Court Election Petition No. 3 of 2003
- Jurisdiction invoked
- Not expressly stated in the judgment; the appeal is a first appeal to the Court of Appeal against the orders of the High Court (Election Court) in an election petition governed by the National Assembly and Presidential Elections Act, Cap 7, and the rules made thereunder.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Githinji Johnson Kamau v Kingara Benson Kamau, Kwanusu Dickson Simiyu & Independent Electoral and Boundaries Commission (Election Petition 1 of 2017) (Civ) [2017] KEMC 63 (KLR)[2017] KEMC 63 (KLR)29 Nov 2017
- Joseph Obiri Kenyaga v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 91 (KLR)[2017] KEMC 91 (KLR)24 Oct 2017
- Kidero & 4 others v Waititu & 4 others (Petition 18 & 20 of 2014 (Consolidated))[2014] KESC 11 (KLR)29 Aug 2014
- Kennedy Kemboi Lel v Singoei Pauline & 4 others [2013] KEMC 23 (KLR)[2013] KEMC 23 (KLR)9 Oct 2013
Cite this brief
#Cite this brief
Caselaw, "Rotich Samuel Kimutai v Ezekiel Lenyongopeta & 2 others [2005] KECA 96 (KLR)", Case Analysis (2005). Civil Appeal 273 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/96/eng@2005-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.