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MagistrateAllowedElection Petition No. 2 of 2013· [2013] KEMC 6 (KLR)

Musa Ibrahim Dimbil v Independent Electoral and Boundaries Commission [2013] KEMC 6 (KLR)

Principal Magistrate's Court of Kenya at Wajir
26 August 2013
LKLinus Kassan
212 words in judgment
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The bottom line

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A Wajir court let a petitioner withdraw his election petition without proof of required gazettement, but awarded costs against him and flagged his advocate for disciplinary review.

What this practically means

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Executive summary

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In an election petition from Wajir arising from the 2013 elections, the petitioner Musa Ibrahim Dimbil sought to withdraw his petition against the Independent Electoral and Boundaries Commission and the 2nd respondent Abdullahi Ali Abdi. On 26 August 2013 neither the petitioner nor his advocate appeared in court. The court, presided over by Linus Kassan, Principal Magistrate, noted that there was no proof that the petitioner had complied with the Elections Act, and specifically that the petitioner, despite having over a month, had not produced evidence of gazettement of the application to withdraw the case, even after the matter had been dealt with severally. The court criticised the petitioner's advocate for taking the court for granted. However, with only fourteen days remaining before the statutory deadline for deciding election petitions, the court held it had no choice but to allow the application to withdraw the petition. It ordered that the proceedings be typed and that the matter be taken up by the Chief Registrar to consider action against the petitioner's advocate. The application was allowed with costs to the 1st respondent, payable by the petitioner, and assessment of the bill of costs was set for 19 September 2013. The judgment is a short ex tempore ruling rather than a reasoned judgment on the merits of the election dispute, and no authorities were cited.

Key legal issues

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01

Withdrawal of an election petition and compliance with the Elections Act

Holding

The court allowed the withdrawal despite noting an absence of proof of gazettement, finding itself constrained by the statutory 14-day remaining deadline for deciding election petitions.

Reasoning

The court observed that neither the petitioner nor his advocate appeared, and that no proof of compliance with the Elections Act, including gazettement of the withdrawal application, had been produced despite several mention dates. Nonetheless, with only fourteen days left before the statutory deadline for deciding election petitions, the court held it had no choice but to allow the withdrawal, and referred the advocate's conduct to the Chief Registrar.

p. 2

Legal principles established

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  • An election petitioner must prove compliance with the Elections Act requirements, including gazettement of an application to withdraw the petition, before the court will entertain the withdrawal.

Court orders

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  1. 1.The petitioner's application to withdraw the election petition is allowed
  2. 2.Costs of the application awarded to the 1st respondent, payable by the petitioner
  3. 3.The proceedings to be typed and the matter referred to the Chief Registrar to consider action against the petitioner's advocate
  4. 4.Assessment of the bill of costs set for 19/9/13

Authorities

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Legislation

  • Elections Act
Jurisdiction invoked
Elections Act (election petition jurisdiction; statutory deadline for deciding election petitions referenced)

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, "Musa Ibrahim Dimbil v Independent Electoral and Boundaries Commission [2013] KEMC 6 (KLR)", Case Analysis (2013). Election Petition No. 2 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/6/eng@2013-08-26

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