Kituo Cha Sheria v John Ndirangu Kariuki & Independent Electoral and Boundaries Commission
The bottom line
#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
#Executive summary
#Key legal issues
#Locus standi of Kituo Cha Sheria
Kituo Cha Sheria is not a juridical person; the registered entity is the Legal Advice Centre, so the petition is incompetent
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.
Jurisdiction over nomination/qualification disputes
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
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.
Joinder of the returning officer
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
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.
Qualification of the 1st respondent under article 99(2)(h)
On the face of it the 1st respondent fails the integrity test, but the question was not before the court given the incompetent petitioner
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.
Legal principles established
#- 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
#- 1.The petition is struck out and dismissed
- 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.Under Rule 37(3), the whole of those costs shall be met from the money deposited by the petitioner as security in Court
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.