Okwemba Milsadeck Elisaphan v Independent Electoral & Boundaries Commission (I.E.B.C.) & 2 others [2013] KEMC 55 (KLR)
The bottom line
#A Kenyan election petition challenging a Kakamega ward result was struck out because it was filed by an advocate without a valid practising certificate.
What this practically means
#Executive summary
#Key legal issues
#Scrutiny and recount of votes
The prayer for scrutiny was premature; the court retains discretion under Section 82(1) of the Elections Act to order scrutiny after evidence is heard, provided a basis is laid under Rule 33
The court examined the forms 35 for the disputed stations, noting missing signatures and unrecorded reasons by presiding officers under Section 79(3) and (5) of the Elections Act, and discrepancies at Mapengo. It held, following Joho v Nyange and Masinde v Bwire, that the petitioner must lay a basis through evidence at trial before scrutiny can be ordered; two stations cited were not pleaded in the petition.
Annexation of election results under Rule 10(1)(c)
The objection failed; the IEBC tally sheet annexed satisfied the requirement of 'the results of the election if any and however declared'
The court read Rule 10(1)(c) flexibly, taking judicial notice that the IEBC tally sheet annexed was unchallenged by IEBC and matched the declared results. Relying on the overriding objective in Rule 4, and on Philip Munge Ndolo v Omar Mwinyi Shimbura, it found no prejudice and held the petitioner had complied.
Filing by an unqualified advocate
The petition and the Notice of Motion dated 12th June 2013 were signed and filed by Mr. Anziya, who held no practising certificate for 2013, rendering them incompetent and liable to be struck out
Comparison of signatures on court documents showed they were by one person; a Law Society of Kenya letter of 25th June 2013 confirmed Anziya Laban Akula last held a practising certificate in 2011. No replying affidavit rebutted the allegations. Following Kenya Power & Lighting Co. v Chris Mahinda and Willis Evans Otieno v LSK, Section 9 of the Advocates Act rendered the documents incompetent; Article 159 and the overriding objective cannot cure such a defect.
Security for costs and service
Security of Kshs.100,000 was paid in good time within 10 days of filing; service by advertisement was effected though non-compliant with Rule 13(3), but no prejudice arose
Deposit slips showed payment at KCB Nakuru on 18th April 2013 with a receipt issued 19th April 2013, within the 10-day window in Rule 11(1). The newspaper advertisement fell below the required font size and dimensions under Rule 13(3), but the respondents were clearly aware of the petition and no prejudice was suffered, so the court would have exercised discretion under Rule 4(1).
Legal principles established
#- An order for scrutiny of votes is not made as a matter of course; it may be made when prayed for in the petition and when a basis for it is shown in evidence
- Section 82(1) of the Elections Act confers a wide discretion on an election court to order scrutiny, including on its own motion, but a basis must be laid
- Documents filed by an advocate without a valid current practising certificate are incompetent, and the overriding objective/Article 159 cannot cure such incurable incompetency
Court orders
#- 1.The Notice of Motion dated 11th June 2013 seeking scrutiny/recount is premature and may be revisited after evidence is taken; costs of that application to be in the cause
- 2.The Notice of Motion dated 12th June 2013 is struck out with costs by reason of the advocate's incompetency
- 3.The petition dated 12th May 2013 and filed on 8th April 2013 is struck out with costs to the respondents
- Jurisdiction invoked
- Election Court jurisdiction under the Elections Act No. 24 of 2011 and the Election (Parliamentary and County Elections) Petition Rules 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okwemba Milsadeck Elisaphan v Independent Electoral & Boundaries Commission (I.E.B.C.) & 2 others [2013] KEMC 55 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013 (Chekalini Ward, Lugari Constituency, Kakamega County). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/55/eng@2013-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.