Michael Odoyo Nyakwaka v Boaz Owiti Okoth & 2 others [2013] KEMC 13 (KLR)
The bottom line
#A Kenyan court held that withdrawing an election petition requires court leave first, and the public must get its full seven-day gazette notice before the withdrawal is heard.
What this practically means
#Executive summary
#Key legal issues
#Procedural regularity of the withdrawal of an election petition
The correct sequence was not followed; the petitioner filed the withdrawal application and gazette notice before obtaining leave
The court observed that the petitioner ought to have first sought leave to withdraw, and only after leave is granted file the application with an accompanying gazette notice. That sequence did not occur. Nevertheless, because the gazette notice dated 12/7/13 ran for seven days for the benefit of the public and interested parties, the court deferred hearing to a date after 19/7/13 rather than refuse the application outright.
Protection of the public and interested parties during withdrawal of an election petition
The seven-day public notice period in the gazette notice must be respected before the withdrawal application is canvassed
The court deferred the matter past 19/7/13 specifically to allow members of the public and any interested parties to act on the gazette notice dated 12/7/13, whose notice to the public was to expire seven days from that date. The court thus treated public participation in the withdrawal process as a factor justifying adjournment, while compensating the respondents with costs of the day.
Mode of trial of the election petition
Viva voce evidence was ordered despite affidavits on file
At the pre-trial conference the court, noting that matters of fact were raised in the affidavits, directed that the petition proceed as a suit for trial with viva voce evidence. Deponents would confirm their affidavits, then be cross-examined and re-examined by the counsel calling them, in the interest of an expeditious trial.
Legal principles established
#- An election petitioner should first seek leave to withdraw before filing the withdrawal application and gazette notice
- Election petitions are subject to strict timelines set by the Constitution
Court orders
#- 1.The petitioner's application dated 27/6/13 (seeking withdrawal of the petition) deferred to a date after 19/7/13 to allow the seven-day gazette notice period to expire
- 2.The adjournment allowed on terms that the petitioner meets the costs of the three respondents for that day
- 3.By consent, matter rescheduled to 24/7/13
- 4.Petitioner granted leave to file a supplementary affidavit on costs within two days, to be filed and served on the respondents
- 5.Respondents granted leave to file further replying affidavits if need be by 23/7/13
- Jurisdiction invoked
- Elections Act, 2011 (election of the Member of the County Assembly Seat of North Kadem Ward)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Odoyo Nyakwaka v Boaz Owiti Okoth & 2 others [2013] KEMC 13 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/13/eng@2013-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.