Samuel Kago Mungai Kimari & another v Miliam Wanjiru & 2 others [2013] KEMC 43 (KLR)
The bottom line
#A Kenyan election court allowed an appeal against pre-trial directions but refused to pause the petition, because election disputes must be resolved within strict timelines.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal should issue against the pre-trial directions of 17th May 2013
Leave was granted for the 3rd respondent to file an appeal within 14 days
The court, mindful of the strict election timelines and the applicant's right to litigate the issue further, exercised its discretion to grant leave to appeal while declining to stall the petition. The court noted it is not final in the decisions it makes and left the merits of the appeal to the High Court.
Whether the court's direction that two witnesses convert their statements into sworn affidavits was within its mandate
The direction was a judicious exercise of discretion under rule 4(1) and consistent with rule 12(4), which permits a witness without an affidavit to testify with leave
Counsel for the 3rd respondent argued rule 12(1) mandates filing of affidavits with the petition, so unsworn statements should be expunged. The court held it acted on its own motion, without changing the contents of the statements, under rule 4(1) of the Election Petition Rules, and that failure to file an affidavit is not an incurable procedural defect since rule 12(4) permits such a witness to give evidence with leave.
Whether stay of execution of the 17th May 2013 ruling pending appeal should be granted
Stay declined
The court held the Election Petition Rules make no provision for staying proceedings in election matters pending appeal, distinguished the ordinary civil stay principles in Order 42 rule 6 CPR and the Balala v Githere principles, and reasoned that the constitutional and statutory six-month timeline under Article 105(2) and section 75(2) of the Elections Act must not be defeated by a stay. Granting the stay would render the petition's timely conclusion improbable.
Legal principles established
#- Failure by a witness to file an affidavit under rule 12(1) is a curable procedural defect, as rule 12(4) allows a witness who has not filed an affidavit to give evidence with the leave of the court
- An election petition is a statutory proceeding to which the ordinary common law and equitable principles of stay of execution, such as Order 42 rule 6 CPR, do not apply
- The Constitution and the Elections Act intend electoral disputes to be determined in a timely manner
Court orders
#- 1.Leave granted to the 3rd respondent, within 14 days of the ruling, to file an appeal against this court's ruling delivered on 17th May 2013
- 2.Prayer for stay of execution of the ruling of 17th May 2013 declined
- 3.Costs of the application to be in the cause
- 4.Hearing of the petition fixed from 24th June 2013 to 28th June 2013, with notice to issue a week prior under rule 19 of the Election Petition Rules
- Jurisdiction invoked
- Elections Act 2011 (section 79(a)) and Elections (Parliamentary and County Elections) Petitions Rules 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kago Mungai Kimari & another v Miliam Wanjiru & 2 others [2013] KEMC 43 (KLR)", Case Analysis (2013). Election Petition No 4 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/43/eng@2013-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.