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Court of AppealPartially AllowedElection Petition Appeal No. 1 of 2018· [2018] KECA 457 (KLR)

Japthet Muroko & another v Independent Electoral & Boundaries Commission & 2 others [2018] KECA 457 (KLR)

Court of Appeal of Kenya
16 April 2018
9,706 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed election petitions cannot be withdrawn at will, and losing petitioners must pay costs even for public interest claims.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

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Executive summary

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This consolidated judgment of the Court of Appeal at Nairobi (Nambuye, Gatembu Kairu and M'inoti, JJ.A.) determines two appeals from Msagha, J.'s ruling of 9th January 2018 striking out Election Petition No. 23 of 2017, which had challenged the election of Kioko Mike Sonko Mbuvi Gidion as Governor of Nairobi County. It also determines the 3rd respondent's motion to strike out EPA No. 3, filed by Noah Akala Oduwo, who had been only a witness in the High Court petition. The Court dismissed the motion, holding that rule 6(1) of the Court of Appeal (Election Petition) Rules 2017 speaks of 'a person who desires to appeal' and that an aggrieved non-party directly affected by a decision has standing to appeal, following Law Society of Kenya v Malindi Law Society. On the substantive appeal, the Court held that the learned judge had judiciously refused further adjournment of the hearing: the appellants had consented to hearing dates, were warned against adjournments, and their belated application to withdraw the petition was a stratagem to delay it. Withdrawal of an election petition and substitution of a petitioner are discretionary, not of right, and the Supreme Court's Salat decision does not displace the specific election petition rules. Although the Civil Procedure Rules do not apply to election petitions, the election court has inherent power to strike out or dismiss a petition to prevent abuse of process. The Court found only one error: the petition should have been dismissed for lack of evidence rather than struck out, an error of no substantive consequence. It therefore substituted the strike-out with an order of dismissal under rule 31 of the Court of Appeal Rules and otherwise dismissed the appeals with costs to the respondents capped at Kshs 2 million. The Court expressly declined to decide the mootness question raised by the respondents.

Key legal issues

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01

Locus standi of a non-party to appeal an election petition ruling

Holding

The 3rd appellant, though only a witness below, had standing to appeal; the motion to strike out EPA No. 3 was dismissed

Reasoning

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.

p. 5
02

Refusal of adjournment of the hearing of the election petition

Holding

The learned judge exercised his discretion judiciously; no basis for appellate interference

Reasoning

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.

p. 9
03

Withdrawal of an election petition and substitution of a petitioner

Holding

Withdrawal and substitution are discretionary, not of right; the Salat decision on withdrawal does not apply where specific election petition rules govern

Reasoning

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.

p. 10
04

Inherent power of the election court to strike out or dismiss a petition

Holding

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

Reasoning

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.

p. 10
05

Costs in election petitions characterised as public interest litigation

Holding

The award of costs against the appellants was proper; costs follow the event under section 84 of the Elections Act

Reasoning

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.

p. 10
06

Mootness of the petition after expiry of the six-month period

Holding

Expressly left undecided as unnecessary for the determination of the appeal

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 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. 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

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 88
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Articles 19, 22, 38, 258, 260
  • Constitution of Kenya, 2010Article 87(1)
  • Elections Actsection 75(2)
  • Elections Actsection 84
  • Elections Actsection 85A(1) and 85A(1)(b)
  • Elections Actsection 87(1)
  • Court of Appeal Rulesrule 31
  • Court of Appeal Rulesrule 75(1)
  • Court of Appeal Rulesrule 77(1)
  • Court of Appeal (Election Petition) Rules, 2017rule 20
  • Court of Appeal (Election Petition) Rules, 2017rules 6(1), 7(1)
  • Elections (Parliamentary and County Elections) Petition Rules, 2017regulation 6
  • Elections (Parliamentary and County Elections) Petition Rules, 2017rules 15(2), 21(1), 24(2), 30
  • Elections (Parliamentary and County Elections) Rules, 2017rules 21 to 24

Cases cited (44)

  • Mumo Matemu v. Trusted Society of Human Rights Alliance
    [2014] eKLR
  • Maathai v. Kenya Times Media Trust Ltd
    [1989] KLR 267
  • Law Society of Kenya, Nairobi Branch v. Malindi Law Society
    [2017] eKLR
  • Mark Ndumia Ndung'u v. Nairobi Bottlers Ltd
    [2018] eKLR
  • Objula Enterprises Ltd v. Summaria
    [1986] KLR 655
  • Ahn v. Openda
    [1982] KLR 87
  • Ethics & Anti-Corruption Commission v National Cereals & Produce Board & Another
    CA No. 9 of 2012
  • Joho v. Nyange & Another
    [2008] 3 KLR (EP) 156
  • Abdihaim Osman Mohammed & Another v. IEBC & 2 Others
    [2014] eKLR
  • David K. ole Nkedianye & 2 Others v. Joseph Jama ole Lenku & 4 Others
    [2017] eKLR
  • Peters v. Attorney General
    [2002] 3 LRC 32
  • Law Society of Kenya v Kenya Revenue Authority & Another
    [2017] eKLR
  • Council of Governors v. Attorney General & Another
    [2017] eKLR
  • Mbogo & Another v. Shah
    [1968] 93
  • Nicholas Kiptoo arap Korir Salat v. IEBC & 7 Others
    [2014] eKLR
  • Japthet Muroko & Another v. IEBC & 2 Others, EP. No. 23 of 2017
    ruling dated 16th November 2017
  • Hillary Tururi Mwita v. Ismail Nyasimi
    [2017] eKLR
  • Peter M. Kariuki v. Attorney General
    [2014] eKLR
  • Obiga Mario Kania v. Electoral Commission & Another
    EP No. 4 of 2011
  • Joseph Borowski v. Attorney General of Canada
    [1989] 1 SCR
  • Lemanken Aramat v. Harun Maitamei Lempaka & 2 Others
    [2014] eKLR
  • Mburu v. Gakuha & 2 Others (No. 2)
    [2008] 2 KLR (EP) 457
  • Gaji v. Sheikh & 2 Others
    [2008] 2 KLR (EP) 164
  • Matiba v. Moi & 2 Others
    [2008] 1 KLR 670
  • Chelaite v. Njuki & 2 Others (No.3)
    [2008] 2 KLR (EP) 209
  • H. K. Shah & Another v Osman Allu
    [1947-1949] EA 45
  • Job Obanda v. Stage Coach International Services Ltd & Another
    [2002] eKLR
  • Kiriisa v. AG & Another
    [1990-1994] EA 258
  • Nanyuki Equator Sacco Co-operative Society Ltd v. Nyeri Sacco Society & Another
    CA No. Nai 86 of 2005
  • Jaribu Holdings v. Kenya Commercial Bank Ltd
    CA No. 314 of 2007
  • Abdala Habib v. Harban Singh Rajput
    [1960] EA 325
  • Savannah Development Co. Ltd. v. Mercantile Finance Co Ltd
    [1992] KLR 463
  • United India Insurance Co. Ltd v. East African Underwriters (Kenya) Ltd
    [1985] E.A 898
  • Kibaki v. Moi
    [1999] eKLR
  • Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Kiwanuka Nsereko v. Returning Officer & Another
    [1995] V KALR 105
  • Beijing Industrial Designing & Researching Institute v. Lagoon Development Ltd
    [2015]
  • Castanho v. Brown & Root (UK) Ltd & Another
    [1981] 1 ALL ER 143
  • Kiska v. de Anelis
    [1969] EA 6
  • Karanja v. Kabugi & Another
    [1976-1985] EA 165
  • Kohli v. Popatlal
    [1964] EA 219
  • Devram Dattan v. Dawda
    [1949] EACA 35
  • Supermarine Handling Services Ltd v. Kenya Revenue Authority
    CA No. 85 of 2006
  • Martha Wangari Karua v IEBC & 3 Others
    CA No. 1 of 2017
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.