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Court of AppealDismissedElection Petition Appeal No. 3 of 2018 (as consolidated with Election Petition Appeal No. 4 of 2018)· [2018] KECA 477 (KLR)

Dickson Daniel Karaba v Kibiru Charles Reubenson & 5 others [2018] KECA 477 (KLR)

Court of Appeal of Kenya
11 July 2018
7,047 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that once you withdraw an election petition, you cannot revive it on appeal, and slashed the record Kshs. 10 million costs award in half.

What this practically means

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Executive summary

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This consolidated appeal arose from the Kirinyaga County Senatorial election of 8th August 2017, in which Kibiru Charles Reubenson defeated Dickson Daniel Karaba, who petitioned the High Court at Kerugoya. After the petition was fully heard, Karaba applied to withdraw it and the 4th, 5th and 6th respondents applied to be substituted as petitioners. Mshila, J. allowed the withdrawal, dismissed both substitution applications, and awarded costs capped at Kshs. 5 million to the 1st respondent and Kshs. 5 million jointly to the 2nd and 3rd respondents. Two appeals followed and were consolidated, with Election Petition Appeal No. 3 of 2018 as the lead file. The Court of Appeal identified three issues: the effect of the withdrawal, the refusals of substitution, and the costs order. On the first, the Court held that by withdrawing the petition together with all applications in it, the appellant compromised everything and could not revive interlocutory rulings, including the ruling of 15th December 2017 refusing a recount. On substitution, the Court upheld the Judge's discretionary findings: the 4th and 5th respondents had deposed to being registered as voters in three different counties, an electoral offence, and sought substitution at the tail end of the proceedings, while the 6th respondent had concealed his own failed election petitions and had not paid costs ordered against him. On costs, applying Section 84 of the Elections Act and the principles in Martha Karua and Philip Kaloki, the Court found Kshs. 10 million excessive and halved it, capping costs at Kshs. 2.5 million for the 1st respondent and Kshs. 2.5 million for the 2nd and 3rd respondents, subject to taxation. Both appeals were dismissed with costs to the 1st, 2nd and 3rd respondents.

Key legal issues

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01

Effect of withdrawal of an election petition on interlocutory rulings

Holding

Once the petition and all applications in it were withdrawn, the appellant retained no rights to appeal or revisit interlocutory rulings; only taxation of costs remained pending.

Reasoning

The appellant himself sought leave to withdraw the petition and to have all subsequent applications marked withdrawn. That motion succeeded, so the petition, the applications and the rulings made on them were 'no more'. While a petitioner may ordinarily challenge interlocutory rulings on appeal from a final decision (Cornel Rasanga), that right presupposes a final decision in a live petition; a withdrawn petition leaves nothing to pursue.

p. 6
02

Substitution of petitioners under rule 24 of the Election (Parliamentary and County Elections) Petition Rules, 2017

Holding

Substitution is discretionary, not automatic; the Judge properly refused both applications for substitution.

Reasoning

The 4th and 5th respondents deposed that they were registered voters in three different counties, an offence under Section 4(1)(a)(i) and (c) of the Elections Act, disqualifying them from the court's discretion; their application came at the tail end of a fully heard petition and would interfere with the statutory 6-month timeline. The 6th respondent failed to disclose his own election petitions, one dismissed and unappealed, and had not paid its costs.

p. 6
03

Award of costs in election petitions

Holding

The total award of Kshs. 10,000,000/= was excessive and was reduced by half, capping each set of costs at Kshs. 2,500,000/=, subject to taxation.

Reasoning

Election disputes are public interest litigation and do not belong to the petitioner alone. Costs must follow the event under Section 84 of the Elections Act, but must be guided by fairness, justice and access to justice so that losing parties are not punished in a way that deters litigants from challenging elections.

p. 7

Legal principles established

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  • A petitioner who withdraws an election petition, including the applications filed in it, cannot on appeal revive or revisit interlocutory rulings made in the withdrawn petition.
  • There is no automatic right to substitution as a petitioner in an election petition; the election court has a discretion to grant or refuse substitution.
  • Costs in election petitions, which are public interest litigation, should not be so excessive as to punish a losing party or deter litigants from approaching the court; election courts must be guided by fairness, justice and access to justice.
  • A court is entitled to draw a negative inference against a party who withholds material evidence within its knowledge.

Court orders

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  1. 1.Both appeals dismissed with costs to the 1st, 2nd and 3rd respondents
  2. 2.Costs awarded in the High Court varied: costs in respect of the 1st respondent capped at Kshs. 2,500,000/=, and those to the 2nd and 3rd respondents capped at Kshs. 2,500,000/=, both subject to taxation

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 86
  • Elections ActSection 80(4)
  • Elections ActSection 83
  • Elections ActSection 84
  • Elections ActSection 4(1)(a)(i) and (c)
  • Election (Parliamentary and County Elections) Petition Rules, 2017Rules 21 and 22
  • Election (Parliamentary and County Elections) Petition Rules, 2017Rules 4, 22 and 24(1) and (2)

Cases cited (3)

  • Cornel Rasanga & Another v William Odhiambo Oduol
    [2013] eKLR
  • Martha Wangari Karua vs Independent Electoral & Boundaries Commission & 3 Others
    [2018] KLR
  • Philip Kyalo Kituti Kaloki v Independent Electoral and Boundaries Commission and 2 Others
    [2018] eKLR
On appeal from
High Court of Kenya at Kerugoya
Election Petition No. 4 of 2017
Jurisdiction invoked
Appeals from rulings of the High Court sitting as an election court under Section 80(4) of the Elections Act (First Schedule to the Constitution); petitions heard under the Election (Parliamentary and County Elections) 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 (3)

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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, "Dickson Daniel Karaba v Kibiru Charles Reubenson & 5 others [2018] KECA 477 (KLR)", Case Analysis (2018). Election Petition Appeal No. 3 of 2018 (as consolidated with Election Petition Appeal No. 4 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/477/eng@2018-07-11

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