Mohamed Dagane Osman v Independent Electoral and Boundaries Commission & another [2013] KEMC 1 (KLR)
The bottom line
#Kenya's High Court in Wajir allowed late responses in an election petition, ruling a 14-day delay with a good explanation and no prejudice should not end a case.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents' non-compliance with the 14-day period for filing responses under section 14 warranted striking out
No - the delay of around 14 days was neither intentional nor inordinate and was sufficiently explained by distance, weather and logistics
The court found the respondents exceeded the 14-day period but accepted explanations: the 1st respondent waited for returning officers travelling from Wajir, about 800 kms away, whose vehicle was involved in an accident; the 2nd respondent lacked funds, attended a sick mother and had to travel to Nairobi to engage an advocate. Heavy rains cut the Wajir-Nairobi road. Weighed against the overriding objective and the six-month disposal timeline, the delay was excusable and non-prejudicial.
Whether rule 20 empowers the court to extend time notwithstanding the sanction in section/rule 14
Yes - the extension-of-time provision applies across all the rules and Parliament did not exclude rule 14 from it
The court rejected the petitioner's argument that rule 20 does not apply where another rule imposes a sanction removing the court's discretion. It reasoned that the words 'as provided for in these rules' show the provision cuts across all the rules, and had Parliament intended to make rule 14 exceptional it would have used words such as 'subject to'.
Whether the petitioner would suffer prejudice if the out-of-time responses were admitted
No - no evidence of prejudice; the court retained about five months to determine the petition within the statutory period
The court held there was no proof the petitioner would suffer prejudice; the delay of 14 days would not substantially affect the capacity to finalize the petition within six months, and the petitioner would in fact gain from a full hearing with adequate time to prove his case.
Legal principles established
#- Rule 20 (extension of time) cuts across all the rules of the election petition rules and is not displaced by the sanction in rule 14
- A response filed out of time may be admitted where the delay is not inordinate, is sufficiently explained, and causes no prejudice to the petitioner
- A short delay that does not imperil the statutory six-month timeline for concluding election petitions is not fatal
Court orders
#- 1.The petitioner's notice of motion dated 23/5/2013 seeking to strike out the respondents' answers and to exclude the respondents from the proceedings is dismissed
- 2.Costs to be in the course (costs to be course)
- Jurisdiction invoked
- Election Petition Rules (rules 4, 5, 14 and 20) under the Constitution and the Elections Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Dagane Osman v Independent Electoral and Boundaries Commission & another [2013] KEMC 1 (KLR)", Case Analysis (2013). Election Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/1/eng@2013-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.