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Court of AppealPartially AllowedElection Petition Appeal (as stated in judgment; petition below was Election Petition before the High Court at Kerugoya)

Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others [2018] KECA 791 (KLR)

Court of Appeal of Kenya
2 March 2018
10,913 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Court of Appeal judgment (Warsame, Musinga and Ouko, JJ.A) allowed an appeal by Martha Karua against the striking out by Gitari, J. of her election petition challenging the election of Anne Waiguru as Governor of Kirinyaga County in the 8th August 2017 election. The trial court had struck out the petition for failure to comply with Rule 8(1)(c) and (d) of the Election Petition Rules, 2017, which require a petition to state the results of the election and the date of declaration, holding the omission substantive and incurable. The Court of Appeal reviewed conflicting High Court jurisprudence and held that while Rule 8(1) is couched in mandatory terms, non-compliance does not per se invalidate a petition where the results and date of declaration are ascertainable from materials on file - here supplied comprehensively by the respondents themselves. Such lapses do not go to the jurisdiction of the court, and Article 159(2)(d) and Rules 4 and 5 require substantive justice to be placed above procedural technicalities. The trial judge erred in striking out a petition raising grave allegations of electoral misconduct after pre-trial, without weighing its strength or the public interest in determination on merit. The Court also set aside the award of costs capped at Kshs. 10 million as excessive and punitive, contrary to access to justice, and substituted costs to the appellant capped at Kshs. 2 million. The appeal was allowed, the striking-out ruling set aside, and the parties directed to appear before Gitari, J. for directions on the hearing of the petition. The grounds of bias and of premature striking-out application were rejected.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether non-compliance with Rule 8(1)(c) and (d) goes to the jurisdiction of the election court
  3. 3.Whether the trial court erred in entertaining the striking-out application after the pre-trial conference
  4. 4.Whether the trial judge used intemperate language or was biased
  5. 5.Whether the trial court erred in awarding costs capped at Kshs. 10 million

Key legal issues

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01

Effect of non-compliance with Rule 8(1)(c) and (d) of the Election Petition Rules, 2017

Holding

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.

Reasoning

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.

p. 15
02

Whether failure to plead date of declaration defeats jurisdiction

Holding

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.

Reasoning

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.

p. 16
03

Whether the trial judge properly exercised discretion in striking out the petition

Holding

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.

Reasoning

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.

p. 20
04

Excessiveness of costs capped at Kshs. 10 million

Holding

The award was excessive and set aside; costs must compensate, not punish or deter litigants.

Reasoning

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.

p. 21

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Ruling of Gitari, J. made on 15th November 2017 striking out the petition set aside
  3. 3.Award of costs of Kshs. 10 million by the trial court set aside
  4. 4.Appellant awarded costs capped at Kshs. 2 million
  5. 5.Parties directed to appear before Gitari, J. on 5th March 2018 for directions on hearing and disposal of the Petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority

Wrote the judgment

majority

Wrote the judgment

William Ouko
W. OukoJA
Currently serving
majority

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

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Ground alleging trial judge's bias and use of intemperate language

Court found strong language per se did not establish bias

p. 20

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

p. 20

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

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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.
p. 15Effect of non-compliance with Rule 8(1)
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.
p. 22Costs capping
we allow the appeal and set aside the ruling by Gitari, J. made on 15th November 2017.
p. 22Final orders / disposition
We direct the parties to appear before Gitari, J. on 5th March 2018 for directions on hearing and disposal of the Petition.
p. 22Remittal for hearing
we award the appellant costs capped at Kshs.2 million.
p. 22Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.