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MagistrateAllowedElection Petition No. 1 of 2013· [2013] KEMC 7 (KLR)

Mohamed Dagane Osman v Independent Electoral & Boundaries Commission & another [2013] KEMC 7 (KLR)

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

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A Wajir court let a voter withdraw his election petition against the IEBC, but punished his lawyer with costs and possible disciplinary action.

What this practically means

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Executive summary

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In this first-instance election petition from Wajir, the petitioner through his advocate applied to withdraw the petition. On 26 August 2013 neither the petitioner nor his advocate appeared. The court, per Linus Kassan PM, observed that there was no proof of compliance with the Elections Act's requirements for withdrawal, in particular gazettement of the withdrawal application, which the petitioner had over a month to accomplish. The court noted the statutory deadline for deciding election petitions, with only fourteen days remaining, and remarked that this was a clear case of an advocate taking the court for granted. The court allowed the withdrawal application, awarded costs to the 1st respondent (the IEBC) payable by the petitioner, directed that the proceedings be typed, and referred the petitioner's advocate to the Chief Registrar for possible disciplinary action for taking the court for granted. Assessment of the bill of costs was set for 19 September 2013. The matter was thus concluded by withdrawal rather than determination on the merits; no findings were made on the validity of the election itself, and no relief was granted or refused on the substantive petition.

Key legal issues

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01

Compliance with the Elections Act in withdrawing an election petition

Holding

The court allowed the withdrawal application despite non-compliance, noting the absence of proof of gazettement, and did so under compulsion of the statutory deadline for determining election petitions.

Reasoning

The petitioner and advocate were absent and had not demonstrated compliance with the Elections Act requirements for withdrawal, including gazettement over the month allowed. With only fourteen days remaining to the statutory deadline for deciding election petitions, the court had no choice but to allow withdrawal, while referring the advocate's conduct to the Chief Registrar and awarding costs to the 1st respondent.

p. 2
02

Professional conduct of the petitioner's advocate

Holding

The advocate's non-appearance and non-compliance warranted referral to the Chief Registrar for possible disciplinary action.

Reasoning

The court characterised the matter as a clear case of an advocate taking the court for granted, given repeated dealings and failure to prosecute or properly apply for withdrawal. It ordered that proceedings be typed and placed before the Chief Registrar, signalling that abuse of court process in election matters attracts professional consequences.

p. 2

Legal principles established

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  • A petitioner seeking to withdraw an election petition must comply with the Elections Act, including gazettement of the withdrawal application, before the court will allow withdrawal.
  • An advocate who treats the court's time and processes with disregard may be referred to the Chief Registrar for disciplinary action.

Court orders

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  1. 1.The application to withdraw the election petition is allowed
  2. 2.Proceedings to be typed and the matter referred to the Chief Registrar to consider action against the petitioner's advocate
  3. 3.Petitioner to pay costs of the application to the 1st respondent
  4. 4.Assessment of bill of costs fixed for 19/9/13

Authorities

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Legislation

  • Elections Actprovisions governing withdrawal of election petitions
Jurisdiction invoked
Elections Act (election petition jurisdiction; statutory deadline for deciding election petitions)

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, "Mohamed Dagane Osman v Independent Electoral & Boundaries Commission & another [2013] KEMC 7 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/7/eng@2013-08-26

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