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MagistratePartially AllowedElection Petition No 4 of 2013· [2013] KEMC 43 (KLR)

Samuel Kago Mungai Kimari & another v Miliam Wanjiru & 2 others [2013] KEMC 43 (KLR)

Magistrates' Court (Election Court)
30 May 2013
2,376 words in judgment
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The bottom line

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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

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Executive summary

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This ruling by Senior Principal Magistrate R. A. Oganyo, delivered on 30th May 2013, determined an application by the 3rd respondent, Daniel Kithamba Mutiso, seeking leave to appeal and a stay of execution of the court's pre-trial ruling and directions of 17th May 2013 in an election petition concerning the Ngei Ward County Ward Representative election. The disputed directions had allowed the petition's relief to be amended to specify the contested election and required two witnesses who had recorded only statements to have them attested as affidavits. The applicant argued the court lacked power to permit amendment after the statutory filing period under section 76(4) of the Elections Act and that rule 12(1) required affidavits to accompany the petition, warranting the witnesses' exclusion. The petitioners, through Mrs. Owino, opposed the application as misconceived and abusive, stressing the strict six-month constitutional and statutory timeline under Article 105(2) and section 75(2) of the Elections Act. The court distinguished the Amina Hassan Ahmed case on its facts, held that failure to file a witness affidavit is a curable defect under rule 12(4), and found that the Election Petition Rules contain no provision for staying proceedings pending appeal. Ordinary civil stay principles under Order 42 rule 6 CPR and Balala v Githere were held inapplicable to statutory election proceedings. The court granted leave to appeal within 14 days but declined the stay, ordered costs in the cause, and fixed the petition for hearing from 24th to 28th June 2013.

Key legal issues

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01

Whether leave to appeal should issue against the pre-trial directions of 17th May 2013

Holding

Leave was granted for the 3rd respondent to file an appeal within 14 days

Reasoning

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.

02

Whether the court's direction that two witnesses convert their statements into sworn affidavits was within its mandate

Holding

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

Reasoning

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.

p. 3
03

Whether stay of execution of the 17th May 2013 ruling pending appeal should be granted

Holding

Stay declined

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Prayer for stay of execution of the ruling of 17th May 2013 declined
  3. 3.Costs of the application to be in the cause
  4. 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

Authorities

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Legislation

  • Elections Act 2011section 79(a)
  • Elections Act 2011section 76(4)
  • Elections Act 2011section 75(2)
  • Elections (Parliamentary and County Elections) Petitions Rules 2013 (Legal Notice No. 44 of 2013)Rules 2, 4, 4(1), 5(1)(a)(b), 5(2), 6, 10(1), 12(1), 12(4), 12(6), 17(1)(d), 19, 34(1)-(10)
  • Constitution of Kenya 2010Article 105(2)
  • Civil Procedure Rules 2010Order 19 rule 3; Rule 6; Order 42 rule 6

Cases cited (3)

  • Amina Hassan Ahmed v Returning Officer Mandera County & 2 Others
    EP No. 4 of 2013
  • Balala and Others v Githere and Others
    (2005) 2 E.A. 25 (CAK)
  • Hon. Clement Kungu Waibara & Another v Hon. Francis Kigo Njenga & Three Others
    EP No. 15 of 2013
Jurisdiction invoked
Elections Act 2011 (section 79(a)) and Elections (Parliamentary and County Elections) Petitions Rules 2013

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, "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.