ELECTORAL COMMISSION OF KENYA v AYUB JUMA MWAKWESI & another [2009] KECA 90 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed courts can reject late applications designed to delay election petitions once hearings are underway.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in declining to admit to hearing and in striking out the two notices of motion seeking to strike out the election petition
- 2.Whether an election court, having listed a petition for hearing under section 22 of the National Assembly and Presidential Elections Act, retains discretion to entertain an interlocutory application to reject the petition
- 3.Whether the striking out of the returning officer from the petition rendered the petition unsustainable against the remaining respondents
Key legal issues
#Discretion of the election court to admit or reject interlocutory applications after listing the petition for hearing
The Judge correctly declined to admit the motions; his discretion was exercised judicially and cannot be faulted, since section 22 of the Act is the substantive law that overrides rule 22 of the Election Petition Rules.
Section 22 permits the court to summarily reject a petition or list it for hearing; once listed, the court retains wide discretion under section 22 and rule 22 to regulate its proceedings in the interests of justice. The motions were brought late, after the 2nd appellant had closed his case and the petition was substantially heard, and their only effect was to prolong proceedings. Issues arising from the removal of the returning officer could have been raised within the pending petition rather than by fresh motions.
Effect of the returning officer's removal from the petition on the petition against the remaining respondents
The change in the character of the petition after the returning officer's removal did not entitle the appellants to file fresh striking-out motions; the point could have been raised during the ongoing petition hearing.
Though the character and substance of the petition changed after this Court struck out the returning officer, the hearing date had been fixed long before that, and the appellants could still raise the issue during the petition. Filing fresh motions at the close of evidence was an attempt to buy time and render the petition meaningless by effluxion of time, contrary to the principle of expeditious disposal of election petitions.
Legal principles established
#- An election court that has listed a petition for hearing under section 22 of the Act may, in its wide and unfettered discretion governed by the interests of justice, reject interlocutory applications brought to delay the petition; the substantive provisions of the Act override the permissive procedural rules.
- Election petitions must be heard and disposed of expeditiously and take priority over other matters, and parties may not be permitted to frustrate that expeditious disposal.
- The power to stop an action at an interlocutory stage is to be sparingly used, reserved for actions that are abuses of legal procedure or obviously and almost incontestably bad.
Court orders
#- 1.The two consolidated appeals (Civil Appeals Nos. 272 and 275 of 2008) are dismissed
- 2.Costs awarded to the 1st respondent Ayub Juma Mwakwesi only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Election Petition No. 1 of 2008
- Jurisdiction invoked
- Appeal from an interlocutory ruling of the High Court in an election petition under section 44 of the Constitution of Kenya (repealed Constitution) and the National Assembly and Presidential Elections Act (Cap 7)
- Consolidated with
- Civil Appeal 275 of 2008
Relief refused
#Admission to hearing of the two notices of motion seeking striking out of the election petition
The motions were wantonly brought to prolong proceedings and defeat the expeditious disposal of the election petition; the learned Judge had exercised his discretion judicially
Costs
The two consolidated appeals are dismissed with costs to the 1st respondent Ayub Juma Mwakwesi only.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the foregoing reasons, these two consolidated appeals are hereby ordered dismissed with costs to the 1 st respondent Ayub Juma Mwakwesi only.
The Courts discretion to act either way is wide and unfettered, the main consideration, of course, being the interests of justice.
We think that to allow this appeal would in fact be rewarding the appellants’ attempt to prevent conclusion of the petition and we would instead be negating the principle that election petitions should be disposed of expeditiously.
The motions were, in our view wantonly brought without a shadow of an excuse.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ELECTORAL COMMISSION OF KENYA v AYUB JUMA MWAKWESI & another [2009] KECA 90 (KLR)", Case Analysis (2009). Civil Appeal 272 of 2008 (consolidated with Civil Appeal 275 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/90/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.