Japthet Muroko & another v Independent Electoral & Boundaries Commission & 2 others [2018] KECA 457 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed election petitions cannot be withdrawn at will, and losing petitioners must pay costs even for public interest claims.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a non-party to appeal an election petition ruling
The 3rd appellant, though only a witness below, had standing to appeal; the motion to strike out EPA No. 3 was dismissed
Following Law Society of Kenya v Malindi Law Society, the Court held that locus standi has crystallised to mean 'an aggrieved person'. Rule 6(1) of the Court of Appeal (Election Petition) Rules 2017 speaks of 'a person who desires to appeal', not a party. Rule 77(1) of the Court of Appeal Rules requires service on all persons directly affected, and rules contemplate affected parties being heard even if not parties below.
Refusal of adjournment of the hearing of the election petition
The learned judge exercised his discretion judiciously; no basis for appellate interference
The Court enumerated considerations for adjournment applications, including the electoral timelines. The appellants knew the hearing dates 30 days in advance, consented to them, and were warned no adjournments would be allowed. Their conduct - the unexplained absence of the 2nd appellant, late police reports, and belated withdrawal application - showed lack of good faith.
Withdrawal of an election petition and substitution of a petitioner
Withdrawal and substitution are discretionary, not of right; the Salat decision on withdrawal does not apply where specific election petition rules govern
Rules 21(1) and 24(2) of the Elections (Parliamentary and County Elections) Petition Rules 2017 make withdrawal and substitution subject to leave and the court's discretion. The withdrawal application was filed belatedly as a stratagem for adjournment. Beijing Industrial Designing and Castanho confirm courts may disallow discontinuance to prevent abuse of process.
Inherent power of the election court to strike out or dismiss a petition
Although the Civil Procedure Rules do not apply to election petitions, the High Court has inherent power to strike out or dismiss a petition to prevent abuse of process
The Court agreed with the appellants that the Civil Procedure Rules do not apply, but held that like all courts, the election court has inherent jurisdiction to control its process and protect statutory timelines, citing Chelaite v. Njuki. The respondents had even conceded that dismissal rather than strike-out was the appropriate course.
Costs in election petitions characterised as public interest litigation
The award of costs against the appellants was proper; costs follow the event under section 84 of the Elections Act
The Court could identify no principle entitling an unsuccessful public interest petitioner to escape costs. The learned judge did not depart from the general rule and did not exceed the costs cap under rule 30. Appellate interference with a costs discretion requires showing irrelevant considerations were taken into account.
Mootness of the petition after expiry of the six-month period
Expressly left undecided as unnecessary for the determination of the appeal
The IEBC and 2nd respondent had raised mootness relying on Borowski and Lemanken Aramat, but since the Court found the discretion was properly exercised, it declined to venture into the mootness question, finding it would serve no purpose.
Legal principles established
#- A person who was not a party to proceedings in the High Court may have locus standi to appeal if directly affected; the election petition appeal rules refer to 'a person who desires to appeal' rather than a party
- An appellate court will not interfere with a trial court's exercise of discretion merely because it would have decided differently; the decision must be shown to be clearly wrong
- Withdrawal of an election petition and substitution of a petitioner are not automatic and are subject to the leave and discretion of the court
- An election court has inherent power to strike out or dismiss a petition despite the inapplicability of the Civil Procedure Rules
- Where a petitioner fails to present evidence when called upon, the proper order is dismissal for lack of evidence rather than striking out
- Public interest litigation status does not exempt a losing election petitioner from paying costs; costs follow the event
Court orders
#- 1.The 3rd respondent's notice of motion filed on 12th February 2018 seeking to strike out Election Petition Appeal No. 3 is dismissed
- 2.Pursuant to rule 31 of the Court of Appeal Rules, the order striking out Election Petition No. 23 of 2017 is substituted with an order dismissing it for lack of evidence
- 3.Save for the substitution order, the consolidated appeals are otherwise dismissed in their entirety with costs to the respondents, capped at Kshs 2 million
- On appeal from
- High Court at Nairobi
- EP. No. 23 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over an election petition appeal under section 85A(1) of the Elections Act; consolidation directed under rule 20 of the Court of Appeal (Election Petition) Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mereng & another v Mereng (Environment and Land Appeal E003 of 2023) [2025] KEELC 8254 (KLR)[2025] KEELC 8254 (KLR)26 Nov 2025applied
- Chatur v Habib & 6 others (Civil Appeal 543 of 2019) [2025] KECA 1463 (KLR)[2025] KECA 1463 (KLR)31 Jul 2025
- Mary Njeri Njuguna (Suing as the legal administratrix and personal representative of the Late Joel Njuguna Mbugua) & 4 others v SS Mehta & Sons Limited[2023] KEELC 19934 (KLR)22 Sept 2023
- Abdullahi v Independent Electoral and Boundaries Commission & 3 others (Election Petition Appeal E004 of 2022) [2023] KECA 207 (KLR)[2023] KECA 207 (KLR)24 Feb 2023
- Joseph Mwangi Mbote & 2 others v Kenya Tea Development Agency (Holdings) Ltd & another[2020] KEHC 9457 (KLR)20 Feb 2020
- Kenya Society of Plastic and Reconstructive Surgery & others v Kenya Medical Practitioners and Dentists Board & others (application by 1st Respondent to strike out the Interested Party's affidavit)[2019] KEHC 5244 (KLR)29 Jul 2019applied
Cite this brief
#Cite this brief
Caselaw, "Japthet Muroko & another v Independent Electoral & Boundaries Commission & 2 others [2018] KECA 457 (KLR)", Case Analysis (2018). Election Petition Appeal No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/457/eng@2018-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.