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Court of AppealPartially AllowedCivil Appeal 102 of 2008· [2008] KECA 338 (KLR)

John Michael Njenga Mututho v Jayne Njeri Wanjiku Kihara, Christopher L. Ajele & Electoral Commission of Kenya

Court of Appeal of Kenya
14 November 2008
ROR.S.C. OmoloSBS.E.O. BosireEOE.O. O'Kubasu
2,473 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an MP election petition because it failed to state the election results, confirming those details are mandatory.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Omolo, Bosire and O'Kubasu, JJA) allowed an appeal against a ruling of Koome J in the High Court, who had declined to strike out an election petition challenging the appellant's election as MP for Naivasha in the December 2007 parliamentary elections. The central question was whether a petitioner filing a petition under Section 44(1)(a) of the Constitution and Section 20(1)(a) of the National Assembly and Presidential Elections Act must particularize the number of votes each candidate received. The appellant and the Electoral Commission had applied to strike out the petition on the ground that it failed to state the result of the election as required by Rule 4(1) of the Election Petition Rules; the petition only recited an oral declaration that 'this old man was a head of Mrs. by 100 votes.' The Court held that Regulation 40 envisages a detailed result - votes cast, rejected and garnered by each candidate - and that Rule 4(1) is concerned with content, not form. Omission of the results leaves an essential element missing, rendering the petition incurably defective, since the Act provides no amendment after 28 days and no supplemental petition was filed. Particulars furnished on request could not regularize a defective pleading, and the word 'shall' in Rule 4 is mandatory. The Court reversed the High Court ruling, allowed the striking-out application, struck out the petition, and awarded costs of the appeal, the application and the petition to the appellant. This decision binds subordinate courts and High Courts on the content requirements of election petitions under the pre-2010 framework.

Key legal issues

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01

Whether the result of the election must be pleaded in the petition

Holding

The result, including votes garnered by each candidate, is a mandatory content requirement of an election petition; its omission is incurably defective

Reasoning

Regulation 40 requires the returning officer to tally votes, announce totals for each candidate and complete Forms 16A and 17A. The result envisaged is the detailed result, not merely the name of the winner. Rule 4(1) concerns content, not form, and the result is the basis of any complaint in the petition.

p. 3
02

Whether particulars supplied after filing cure the omission

Holding

Particulars count only if the petition itself is competent; they clarify issues but cannot regularize a defective pleading

Reasoning

Election petitions are special proceedings that must be determined expeditiously. Section 20 permits amendment only within 28 days and no supplemental petition was filed under section 20(3). The petitioner did not have the results even at the hearing, so findings on her issues would serve no useful purpose.

p. 4
03

Whether 'shall' in Rule 4(1) is mandatory or directory

Holding

Mandatory, because reading it otherwise would render the provisions of the rule otiose

Reasoning

The National Assembly and Presidential Elections Act is a complete code with no provision for amendment after 28 days. Given the conclusions on the essential nature of the result requirement, the mandatory reading follows; a directory reading would defeat the rule.

p. 4

Legal principles established

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  • An election petition must state the result of the election, including the number of votes each candidate received; omission renders the petition incurably defective
  • The word 'shall' in Rule 4(1) of the Election Petition Rules is mandatory
  • Furnishing particulars after filing cannot validate a petition that omits an essential element

Court orders

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  1. 1.Appeal allowed
  2. 2.Decision of the superior court dated 30th April 2008 set aside
  3. 3.Appellant's application dated 20th February 2008 allowed
  4. 4.1st respondent's petition dated 18th January 2008 struck out
  5. 5.Costs of the appeal, the application to strike out the petition and the petition awarded to the appellant

Authorities

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Legislation

  • Constitution of KenyaSection 44(1)(a)
  • National Assembly and Presidential Elections Act, Cap 7Section 20(1)(a)
  • National Assembly and Presidential Elections Act, Cap 7Section 20
  • National Assembly and Presidential Elections Act, Cap 7Section 20(3)
  • Presidential and Parliamentary Elections RegulationsRule 4(1)
  • National Assembly Elections (Election Petition) RulesRule 4
  • National Assembly, and Presidential Elections RegulationsRule 40(1)
  • National Assembly, and Presidential Elections RegulationsRegulation 46
  • Interpretation and General Provisions Act, Cap 2Section 72

Cases cited (1)

  • SIMON KURIA KANYINGI V. NYANJA AND 2 OTHERS

    Particulars supplied in response to a request become part of the petition and cure defects in it

On appeal from
High Court of Kenya at Nakuru
H.C. Election Petition No. 2 of 2008
Jurisdiction invoked
Section 44(1)(a) of the Constitution and Section 20(1)(a) of the National Assembly and Presidential Elections Act, Cap 7

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Michael Njenga Mututho v Jayne Njeri Wanjiku Kihara, Christopher L. Ajele & Electoral Commission of Kenya", Case Analysis (2008). Civil Appeal 102 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/338/eng@2008-11-14

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