Abraham Mwangi Njihia v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2013] KEMC 3 (KLR)
The bottom line
#Kenya's Election Court struck out a petition because the lawyer who filed it lacked a current practising certificate, and the Constitution's 'justice over technicalities' rule could not save it.
What this practically means
#Executive summary
#Key legal issues
#Whether the election court had jurisdiction to strike out the petition
The court held it had jurisdiction to strike out, drawing on Section 79 of the Elections Act and superior court decisions; the Elections Act does not grant different powers to High Court and Resident Magistrate election courts
The petitioner argued the court was a creature of statute with only powers conferred by the Elections Act and the Petition Rules, and lacked inherent jurisdiction. The court agreed its jurisdiction was statutory but held that the power to reject or strike out petitions is encompassed within its mandate, and that it is bound by superior court decisions under the doctrine of stare decisis recognised in Article 163(7) of the Constitution.
Whether the petition was incompetently filed for want of a practicing certificate
The petition was incompetent; the advocate did not hold a practicing certificate on 15/3/2013 when he filed it, and the certificate issued on 2/5/2013 could not validate the earlier filing
The advocate did not deny lacking a practicing certificate as at the filing date. Section 9 of the Advocates Act sets qualification conditions, and Section 31 prohibits unqualified persons from acting as advocates. Citing Belgo Holdings, Willis Evans Otieno and National Bank of Kenya Ltd v Wilson Ndolo Ayah, the court held that documents drawn and filed by an unqualified advocate are invalid as a matter of public policy.
Whether Article 159(2)(d) and the overriding objective saved the petition
No – the requirement for a practicing certificate is a substantive requirement of law, not a mere procedural technicality
The petitioner argued that striking out would defeat substantive justice and violate his political and access-to-justice rights. The court acknowledged the petitioner's entitlement to justice and the public interest in election disputes, but held that the objects and values of the Constitution do not authorise courts to protect illegalities, and that compliance with the Advocates Act cannot be dispensed with in an election petition.
Legal principles established
#- An advocate without a current practicing certificate is not qualified to act, and a petition drawn and filed by such an advocate is incompetent and may be struck out by the Election Court
- A practicing certificate issued after the date of filing cannot be backdated to validate the earlier filing
- An Election Court sitting as a Resident Magistrate's Court has jurisdiction to strike out an election petition and is bound by superior court decisions under Article 163(7)
- Article 159(2)(d) does not excuse non-compliance with statutory requirements
Court orders
#- 1.The application by the 1st and 3rd Respondents to strike out the petition is allowed
- 2.The petition is struck out as incompetent
- 3.Costs of the application to the applicants
- 4.Stay of 30 days
- 5.Leave granted for typed proceedings to enable the petitioner to file an appeal
- Jurisdiction invoked
- Section 75(1) of the Elections Act No. 24 of 2011 – petition as to election of a member of the County Assembly determined by a Resident Magistrate appointed by the Chief Justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abraham Mwangi Njihia v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2013] KEMC 3 (KLR)", Case Analysis (2013). Election Petition No. 3 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/3/eng@2013-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.