Lambeshua Reuben Moriaso Ole v Kool Julius Ole & 3 others [2013] KEMC 62 (KLR)
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
#Key legal issues
#Whether an unsupported Amended Petition should be summarily rejected under Section 79(a) of the Elections Act
Yes - the Amended Petition without a supporting affidavit disclosed no sufficient ground and was summarily rejected
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).
Whether the Amended Petition was served
No service was proved; the Amended Petition was a petition that never was
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.
Whether failure to obtain leave before amending the petition was fatal
No - it was a curable, discretionary omission that prejudiced no one
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.
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.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.The 2nd Respondent's election as the elected representative for the County Assembly Ward of Olokurto in Narok County is upheld
- 3.The Petitioner to bear the entire cost of the Petition
- 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.