Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateDismissedElection Petition (Narok), Amended Petition dated 25-03-2013· [2013] KEMC 62 (KLR)

Lambeshua Reuben Moriaso Ole v Kool Julius Ole & 3 others [2013] KEMC 62 (KLR)

Resident Magistrate's Court (Election Petition)
6 September 2013
2,994 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court threw out an election petition for Olokurto Ward because the amended petition lacked a supporting affidavit and was never properly served.

What this practically means

#

Executive summary

#
The court dealt with two competing interlocutory applications in an election petition concerning the Olokurto County Assembly Ward in Narok County: the Petitioner's preliminary objection seeking to strike out the 1st and 2nd Respondents' out-of-time Response to Petition, and the Respondents' Motion seeking dismissal of the Amended Petition dated 25-03-2013. The court framed five contested issues in order of priority, starting with whether the unsupported Amended Petition should be summarily rejected under Section 79(a) of the Elections Act. Holding that the filing of an amended pleading extinguishes the original, and that the Amended Petition bore no supporting affidavit in breach of mandatory Rule 10(3)(b) of the Petition Rules, 2013, the court found the petition to be mere allegations without evidential substratum and summarily rejected it. In the alternative, the court found no proof of personal or advertised service of the Amended Petition; the return of service filed after arguments closed was rejected as stealing a march, the court following the Naomi Cidi decision that an unserved petition is no petition at all. Failure to obtain leave before amending was treated as a curable discretionary omission. The remaining issues became moot. The court upheld the 2nd Respondent's election, awarded the entire costs of the petition to the Respondents, and noted a 30-day right of appeal.

Key legal issues

#
01

Whether an unsupported Amended Petition should be summarily rejected under Section 79(a) of the Elections Act

Holding

Yes - the Amended Petition without a supporting affidavit disclosed no sufficient ground and was summarily rejected

Reasoning

The original petition, which was supported by an affidavit, was extinguished by the filing of the Amended Petition. Rule 10(3)(b) of the Petition Rules, 2013 is mandatory, requiring a supporting affidavit. Without it, the petition was mere allegations with no evidential substratum, failing the basic threshold for the reliefs sought, and the court exercised its summary rejection power under Section 79(a).

p. 5
02

Whether the Amended Petition was served

Holding

No service was proved; the Amended Petition was a petition that never was

Reasoning

There was no affidavit of service on record at the time of hearing, and the return of service was filed only after arguments closed. Relying on the Naomi Cidi decision, the court found no service at all and declined to admit the late proof of service as it would be stealing a march on the respondents.

p. 5
03

Whether failure to obtain leave before amending the petition was fatal

Holding

No - it was a curable, discretionary omission that prejudiced no one

Reasoning

Although the amendment under Section 76(4) of the Elections Act required leave, that power is discretionary. Since the respondents had responded to the Amended Petition and accrued defences on it, punishing the petitioner would visit injustice on the respondents; none was prejudiced by the omission.

p. 5

Legal principles established

#
  • An amended pleading extinguishes the earlier pleading and must be supported by its own affidavit at filing and service
  • A petition cannot be bifurcated from its supporting affidavit; Rule 10(3)(b) is mandatory
  • A petition not served is no petition at all; late-filed proof of service cannot be received

Court orders

#
  1. 1.The Amended Petition is summarily rejected under Section 79(a) of the Elections Act No. 24 of 2011 as disclosing no sufficient ground for granting the reliefs sought
  2. 2.The 2nd Respondent's election as the elected representative for the County Assembly Ward of Olokurto in Narok County is upheld
  3. 3.The Petitioner to bear the entire cost of the Petition
  4. 4.Right of appeal to the superior court is 30 days
Jurisdiction invoked
Elections Act No. 24 of 2011 (Sections 76(4), 79(a)) and the Elections (Parliamentary and County Assembly Elections) Petition Rules, 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lambeshua Reuben Moriaso Ole v Kool Julius Ole & 3 others [2013] KEMC 62 (KLR)", Case Analysis (2013). Election Petition (Narok), Amended Petition dated 25-03-2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/62/eng@2013-09-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.