Kennedy Kemboi Lel v Singoei Pauline & 4 others [2013] KEMC 23 (KLR)

Article 258(1) allows every person to institute proceedings claiming contravention of the Constitution, and clause (2) permits suits in the interest of a group or in the public interest. The Petitioner's gender did not bar him from suit on behalf of female nominees; as a voter he had an interest in democratic and meritorious representation, and failure to enjoin party leaders did not oust his locus.

Section 74(3) requires nomination disputes to be determined before the nomination or election and does not envisage the Commission's Dispute Resolution Committee resolving disputes over nominees already gazetted. Nor is the High Court's jurisdiction an appeal from the tribunal. Once nominees became members of the County Assembly, section 75(1)(a) clothed this court with jurisdiction over disputes relating to representation to the County Assembly.

The Petitioner paid the security about two months after filing and never invoked Rule 20 for extension of time; the court did not extend time on its own motion. However, following Muchemi J in the Cidi case, a petitioner who deposits security out of time is treated differently from one who fails to deposit at all, and the late deposit did not of itself warrant striking out the petition.

The respondents only learnt of the petition through the gazette notice and mention notices, obtaining photocopies from the registry to file their responses. The Petitioner did not deny non-service and took no steps to cure it. Adopting Muchemi J's reasoning that an unserved pleading is a petition that never was, the court found the petition could not stand.