Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others [2018] KECA 791 (KLR)
The bottom line
#The Court of Appeal reinstated Martha Karua's petition challenging the Kirinyaga governor's election, ruling that missing details in a petition are not automatically fatal.
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 petition filed in the High Court complied with Rule 8(1) of the Election Petition Rules, 2017, and if not, the consequences or effect of such non-compliance
- 2.Whether non-compliance with Rule 8(1)(c) and (d) goes to the jurisdiction of the election court
- 3.Whether the trial court erred in entertaining the striking-out application after the pre-trial conference
- 4.Whether the trial judge used intemperate language or was biased
- 5.Whether the trial court erred in awarding costs capped at Kshs. 10 million
Key legal issues
#Effect of non-compliance with Rule 8(1)(c) and (d) of the Election Petition Rules, 2017
Non-compliance is not per se fatal; where results and date of declaration are before the court from other sources, the petition should be sustained and heard on merit.
The court examined conflicting High Court decisions, noted Rule 8(1) is mandatory in form but found that the overriding objective in Rules 4 and 5 and Article 159(2)(d) require the court's discretion under Rule 5(1) to favour substantive justice. The information omitted by the petitioner had been supplied by the respondents and was undisputed, so no prejudice or jurisdictional deficit arose.
Whether failure to plead date of declaration defeats jurisdiction
Rejected; the jurisdiction of the High Court over election petitions stems from Article 87(2) and section 75 of the Elections Act, and non-compliance with the Rules does not affect that jurisdiction.
The court found the petition was filed within 25 days of the declaration on 10th August 2017, computable from material on record. The dispute concerned the manner in which the election was won, not the date of declaration. Where a procedural failing can be cured under Article 159, the court should exercise discretion to cure it.
Whether the trial judge properly exercised discretion in striking out the petition
She did not; the discretion was exercised on an erroneous view of the law, without weighing the strength of the petition or the public interest in determination on merit.
The petition raised grave allegations of cheating, intimidation and tampering requiring determination on merit. The trial court failed to consider that the respondents had supplied the missing information, described the petition as 'hopeless' without basis, and struck out a petition after pre-trial had been done and hearing dates fixed.
Excessiveness of costs capped at Kshs. 10 million
The award was excessive and set aside; costs must compensate, not punish or deter litigants.
The trial court gave no basis for the figure; the matter did not proceed to full hearing and parties appeared fewer than ten times. Comparators show capping between Kshs. 1.5 and 5 million. High costs impede access to justice under Article 48.
Legal principles established
#- Failure to comply with Rule 8(1) of the Election Petition Rules, 2017 (failing to plead results and date of declaration) does not per se invalidate an election petition where those facts are ascertainable from materials on the court file, including documents filed by respondents; such lapses do not go to jurisdiction and should not justify striking out.
- Deviations from procedure that do not go to jurisdiction or occasion prejudice should not attract the sanction of striking out pleadings.
- An election court may only strike out a petition as a last resort where it is hopeless or irredeemably defective, e.g. filed outside constitutional or statutory timeframes; courts must prefer determination on merit.
- Costs capping under Rule 30 is intended to protect access to justice, not to be punitive; costs capped at inordinately high amounts in matters not proceeding to full hearing are excessive.
Court orders
#- 1.Appeal allowed
- 2.Ruling of Gitari, J. made on 15th November 2017 striking out the petition set aside
- 3.Award of costs of Kshs. 10 million by the trial court set aside
- 4.Appellant awarded costs capped at Kshs. 2 million
- 5.Parties directed to appear before Gitari, J. on 5th March 2018 for directions on hearing and disposal of the Petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kerugoya
- Election Petition filed 5th September 2017 (ruling of Gitari, J. dated 15th November 2017)
- Jurisdiction invoked
- Appeal from the High Court's determination of a county gubernatorial election petition under Article 87(2) of the Constitution and sections 75, 79, 80, 82, 83, 84 and 85 of the Elections Act
Relief refused
#Ground alleging trial judge's bias and use of intemperate language
Court found strong language per se did not establish bias
Ground that the striking-out application was filed too late, after pre-trial
Rule 12(2) permits interlocutory applications even after pre-trial; jurisdictional questions may be raised at any stage
Costs
The trial court's costs award capped at Kshs. 10 million set aside; the appellant awarded costs of the appeal capped at Kshs. 2 million ('we award the appellant costs capped at Kshs.2 million')
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.
It should be noted that failure to comply with the provisions of Rule 8(1) per se does not mean that the petition is invalid.
We therefore think that such a huge cost as awarded here by the learned Judge would result in a miscarriage of justice as there was no basis for capping the costs at Kshs.10 million as we said earlier, in a matter that did not proceed to hearing.
we allow the appeal and set aside the ruling by Gitari, J. made on 15th November 2017.
We direct the parties to appear before Gitari, J. on 5th March 2018 for directions on hearing and disposal of the Petition.
we award the appellant costs capped at Kshs.2 million.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- United Way Kenya Limited & another v Mereu & 5 others (Environment & Land Case 959 of 2017) [2025] KEELC 3246 (KLR)[2025] KEELC 3246 (KLR)4 Apr 2025applied
Cite this brief
#Cite this brief
Caselaw, "Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others [2018] KECA 791 (KLR)", Case Analysis (2018). Election Petition Appeal (as stated in judgment; petition below was Election Petition before the High Court at Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/791/eng@2018-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.