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MagistratePartially AllowedNot stated in judgment (Election Petition, Nairobi)· [2013] KEMC 68 (KLR)

Joel Nyabuto Omwenga & 2 others v IEBC & another [2013] KEMC 68 (KLR)

Election Court (Magistrates' Court), Nairobi
5 July 2013
AMA. K. Mwicigi
1,869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan election court ruled that the party who brings an election petition has the right to make final submissions first, not the respondents.

What this practically means

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Executive summary

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This interlocutory decision of an election court in Nairobi determined which party has the first right of audience in oral submissions following the close of an election petition hearing. The 1st respondent (IEBC), through Mr. K. Macharia, argued that Order 18 Rule 2(2) of the Civil Procedure Rules entitled the defendant to begin submissions. The petitioners, through Mrs. Kogweno and Mr. Thuita, opposed, contending that election petitions are special statutory proceedings to which the Civil Procedure Act and Rules do not apply, and cited election court authorities including Karauri, Mbuzi vs Omar, Ahmed vs Twaha and Murathe vs Macharia. The court reviewed these authorities, holding the Elections Act to be a self-contained regime, and noted that Rule 12(6) of the Elections (Parliamentary and County Elections) Petition Rules 2013 is the express exception incorporating parts of civil procedure. The court also relied on Kabuti v Kingola (Machakos Election Petition 9 of 2013) and quoted Jyoti Basu v Debi Bhosal on the statutory character of election petitions. Finding that the sequence of submissions had already been settled at the pre-trial conference of 15-16 May 2013, and applying the principle that he who alleges must prove, the court directed that the petitioners submit first, the respondents respond, and the petitioners reply on points of law only. The parties were reminded of the overriding objective of the Petition Rules. No costs order was made. The decision was delivered on 5 July 2013.

Key legal issues

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01

Applicability of the Civil Procedure Act and Rules to election petitions

Holding

The Civil Procedure Act and Rules do not apply to election petitions except where expressly provided, as in Rule 12(6) of the Petition Rules

Reasoning

Relying on Karauri, Ahmed vs Twaha, Murathe and Mbuzi vs Omar, and the High Court decision in Kabuti v Kingola, the court held that the Elections Act is a self-contained regime and election courts have inherent powers to decide cases without undue regard to technicalities. Rule 12(6) is an express statutory exception incorporating Order 19 and the Oaths and Statutory Declarations Act for affidavits only.

p. 3
02

Right to begin final submissions after close of hearing

Holding

The petitioners, as the parties who alleged and bore the burden of proving the case, have the right to submit first; the respondents then respond, with the petitioners replying on points of law

Reasoning

The court noted the pre-trial conference of 15-16 May 2013 had already settled the sequence of submissions. Applying the principle 'he who alleges must prove' and the overriding objective of the Petition Rules, it held Order 18 was not intended to upset the natural order of proceedings, and it would be absurd for a respondent to submit first where they are not the mover of the motion.

p. 4

Legal principles established

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  • Election petitions are statutory proceedings governed by their own rules; the Civil Procedure Act and Rules apply only where expressly provided by statute
  • An election court has discretion to determine the order of final submissions in accordance with the Constitution, the Elections Act and its rules
  • A respondent should not ordinarily submit first in a matter they did not move

Court orders

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  1. 1.The petitioners reserve the right to make their final submissions first
  2. 2.The respondents will thereafter respond to the petitioners' submissions
  3. 3.The petitioners will reserve the right to respond to the respondents' submissions on points of law and address any issue raised about case law
  4. 4.Parties reminded of the overriding objectives of the Elections (Parliamentary and County Elections) Petition Rules 2013
Jurisdiction invoked
Section 80 of the Elections Act (powers of an election court); Elections (Parliamentary and County Elections) Petition 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, "Joel Nyabuto Omwenga & 2 others v IEBC & another [2013] KEMC 68 (KLR)", Case Analysis (2013). Not stated in judgment (Election Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/68/eng@2013-07-05

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