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High CourtStruck OutElection Petition (Nairobi High Court) — notice of motion dated 29th April 2013

Kituo Cha Sheria v John Ndirangu Kariuki & Independent Electoral and Boundaries Commission

High Court of Kenya
24 May 2013
6,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out Kituo Cha Sheria's election petition because the organisation lacked legal capacity to sue, despite questions about the candidate's integrity.

What this practically means

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Executive summary

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Kituo Cha Sheria petitioned the High Court challenging the nomination and election of John Ndirangu Kariuki as MP for Embakasi Central, contending that his 2004 conviction for abuse of office disqualified him under article 99(2)(h) of the Constitution and that the IEBC erred in clearing him. The 1st respondent moved to strike out the petition on four grounds: lack of jurisdiction over nomination disputes, want of the petitioner's locus standi, the petitioner being a non-entity, and failure to join the returning officer. The court first reaffirmed that striking out is draconian and reserved for hopeless cases, but held that legal capacity to sue is a matter of substance, not technicality. It found that the registered juridical person under section 12(3) of the NGOs Co-ordination Act is the Legal Advice Centre, not Kituo Cha Sheria, which is 'a mere name' existing only in the internal constitution of that entity; an unincorporated name cannot maintain proceedings in its own name, and the defect could not be cured by article 159(2)(d) or amended within the strict election timelines. On jurisdiction, the court held that elections are a continuum and nomination disputes fall primarily to the IEBC under article 88(4)(e) and section 74(1) of the Elections Act, though the High Court may intervene where a statutory body fails its mandate. Failure to join the returning officer was not fatal since no relief was sought against him. The court observed, obiter, that the 1st respondent on the face of it failed the article 99(2)(h) integrity test, his out-of-time appeal application being a self-serving afterthought. The petition was struck out and dismissed, with fixed costs of Kshs 250,000 payable from the security deposit.

Key legal issues

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01

Locus standi of Kituo Cha Sheria

Holding

Kituo Cha Sheria is not a juridical person; the registered entity is the Legal Advice Centre, so the petition is incompetent

Reasoning

The certificate of registration under the NGOs Co-ordination Act names the Legal Advice Centre, which alone has perpetual succession and capacity to sue under section 12(3). Kituo Cha Sheria exists only in the internal constitution of that entity and cannot bind third parties. Capacity to sue is substantive, not technical, and cannot be cured by article 159(2)(d) or Rule 4, nor amended within the strict election timelines.

p. 8
02

Jurisdiction over nomination/qualification disputes

Holding

Nomination disputes fall primarily to the IEBC and other constitutional organs; the High Court's election jurisdiction under article 105 is confined, though it may intervene where IEBC fails its mandate

Reasoning

Elections are a continuum, not an event. Article 88(4)(e) and section 74(1) of the Elections Act vest nomination dispute resolution in the IEBC; the petitioner never sought redress there. Where adequate mechanisms exist in designated constitutional organs, the court should not be invoked until they are exhausted, though the court retains power where a statutory body has failed to act.

p. 6
03

Joinder of the returning officer

Holding

Failure to enjoin the returning officer was not fatal since no relief was sought against him and the petition did not challenge the conduct of the election

Reasoning

Rule 2 of the Petition Rules defines parties but is not cast in stone; the petitioner joined the most relevant parties for the reliefs sought. Mose Nyambega was distinguishable. Rule 4 requires the overriding objective of substantial justice.

p. 7
04

Qualification of the 1st respondent under article 99(2)(h)

Holding

On the face of it the 1st respondent fails the integrity test, but the question was not before the court given the incompetent petitioner

Reasoning

The 1st respondent was convicted of abuse of office in 2004 and did not appeal; his late application for leave to appeal out of time bears hallmarks of a self-serving afterthought. Had a competent petitioner brought the petition, the qualification question was not entirely without merit.

p. 7

Legal principles established

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  • An unincorporated association cannot sue in its own name; legal capacity to sue is a substantive matter of law, not a technicality curable under article 159(2)(d)
  • Striking out is draconian and reserved for hopeless actions, but a petition with no competent petitioner is incurably defective

Court orders

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  1. 1.The petition is struck out and dismissed
  2. 2.The petitioner shall pay costs of Kshs 150,000 to the 1st respondent and Kshs 100,000 to the 2nd respondent (total Kshs 250,000)
  3. 3.Under Rule 37(3), the whole of those costs shall be met from the money deposited by the petitioner as security in Court
  4. 4.The balance of the security deposit shall be refunded to the petitioner
Jurisdiction invoked
Articles 105, 87 and 258 of the Constitution; Elections (Parliamentary and County Elections) Petition Rules 2013

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kituo Cha Sheria v John Ndirangu Kariuki & Independent Electoral and Boundaries Commission", Case Analysis (2013). Election Petition (Nairobi High Court) — notice of motion dated 29th April 2013. Source: 

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