William Kabogo Gitau v George Thuo & 2 others [2009] KECA 459 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once an election petition is filed, candidates cannot inspect electoral documents outside the petition's own trial process.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised pure points of law
Five of the six grounds (grounds 2–6) were not pure points of law but general grounds on the merits, and the judge in effect determined the entire application; only ground 1 raised a pure point of law
The court perused the six grounds and found that grounds 2 to 6 were general grounds opposing the application on the merits, with findings touching on merits such as the fishing-expedition accusation. Nonetheless ground 1, on the competence of a Regulation 42 application where a petition was pending, was a pure point of law, so the objection could stand on that ground alone.
The construction and inter-play of Regulation 42 and Rule 19 of the Election Petition Rules
Regulation 42 provides for retention and public inspection of election documents before a petition is instituted; after a petition is filed, documents are availed at trial under Rule 19 and Regulation 42(4) excludes pending-petition documents absent a court order
The regulations, as amended by L.N. 172 of 2002 and L.N. 178 of 2007, progressively restricted inspection: pending-petition documents were protected absent a court order, and the right to authorise inspection was vested in the High Court with notice to all candidates. The stipulations as to notice to candidates and supervision by the returning officer indicate Regulation 42 caters for pre-petition inspection only.
Whether the election court had jurisdiction to order post-petition inspection
Neither the Act nor the Election Petition Rules specifically provides for inspection of election documents after the petition is filed, so the application for inspection was not maintainable in law
The only inspection references in the Rules concern lists of voters and objections. The cited case law (Said Hemed Said) was distinguishable as it concerned scrutiny and recount, specifically provided for by section 26(1) of the Act. The court declined to import the general civil procedure right of inspection into election law.
Legal principles established
#- Regulation 42 of the Presidential and Parliamentary Election Regulations caters for pre-petition inspection only and does not apply after an election petition has been filed and an election court constituted
- A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained
- Where an application is grounded on no lawful provision, it is not a case of citing the wrong provision but of absence of any conferring power
- An election court retains discretion at the hearing of the petition to order inspection of documents before it under Rule 19
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 10 of 2008
- Jurisdiction invoked
- Appeal from the ruling and order of the High Court (election court) in Election Petition No. 10 of 2008, pursuant to the National Assembly and Presidential Elections Act and Election Petition Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Odinga & another v Independent Electoral and Boundaries Commission & 2 others[2017] KESC 42 (KLR)20 Sept 2017
- Wycliffe Tabani Wepukhulu v Florence Fulano Wekesa & 2 others [2013] KEMC 39 (KLR)[2013] KEMC 39 (KLR)23 Sept 2013applied
- Sharif Abduldadir Abderhman v Abdallah Chikophe & 2 others [2013] KEMC 45 (KLR)[2013] KEMC 45 (KLR)16 Aug 2013applied
Cite this brief
#Cite this brief
Caselaw, "William Kabogo Gitau v George Thuo & 2 others [2009] KECA 459 (KLR)", Case Analysis (2009). Civil Appeal 126 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/459/eng@2009-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.