Lemmy Samatei Kamuye v Born Bob Maren & 2 others [2013] KEMC 77 (KLR)
The bottom line
#A Kenyan court struck out an entire election petition because it was filed under repealed laws by an advocate without a valid practising certificate.
What this practically means
#Executive summary
#Key legal issues
#Filing of pleadings by an advocate without a practising certificate
The petition is fatally defective and must be struck out; there is no cure for pleadings filed by unauthorized persons
The 1st Respondent showed that the petitioner's counsel, Mr. Kilele, did not hold a practising certificate at the time of drawing up and filing the petition. The court held that filings by unqualified persons are incurable and the only remedy is striking out. This defect alone was sufficient to dispose of the petition.
Petition filed under repealed Constitution and statutes
A petition filed under repealed laws is a nullity; there was effectively no petition lodged before the court
The petition invoked the repealed Constitution, the National Assembly and Presidential Elections Act Cap 7, the Election Offences Act Cap 66 and the National Assembly (Election Petition) Rules, instead of the Constitution of Kenya 2010, the Elections Act No. 24 of 2011 and the 2013 Petition Rules. Filing under repealed laws meant no valid petition existed.
Jurisdiction of subordinate courts over County Assembly election petitions under repealed laws
Even treating the petition as properly filed, the repealed laws conferred no jurisdiction on subordinate courts to try County Assembly election petitions
The court reasoned that on its own terms, the repealed statutory regime did not empower subordinate courts to hear election petitions for County Assembly seats. Jurisdiction under the current regime derives from the new constitutional and statutory framework, which the petitioners did not invoke.
Withdrawal of an election petition without Gazette notice
The petitioner could not withdraw the petition for non-compliance with Rule 24's Gazette notice requirement
The petitioner applied to withdraw hours after the inter-partes hearing but had not published notice in the Kenya Gazette as Rule 24 requires. The duty to publish rested on the petitioner, and the failure fatally affected the withdrawal application, so the court proceeded to deliver its ruling on striking out.
Legal principles established
#- Pleadings filed by an unauthorised person without a practising certificate must be struck out; the defect has no cure
- A petition filed under repealed laws is a nullity; it must be filed under the new Constitution and new election regime
- Withdrawal of election petitions is highly regulated and requires Gazette notice under Rule 24; the duty to publish rests with the petitioner
Court orders
#- 1.The petition filed by the Petitioner on 21-MARCH-2013 is struck out in its entirety as incurably defective, incompetent and bad in law
- 2.The pleadings, documents and/or applications lodged by the petitioner collapse with the petition
- 3.Costs of the entire petition and related interlocutory applications awarded to the 3 respondents
- 4.Right of appeal to the High Court within 30 days
- Jurisdiction invoked
- Elections Act No. 24 of 2011 and Elections (Parliamentary and County Elections) Petition Rules 2013, subordinate court jurisdiction over County Assembly election petitions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lemmy Samatei Kamuye v Born Bob Maren & 2 others [2013] KEMC 77 (KLR)", Case Analysis (2013). Election Petition filed 21-MARCH-2013, Narok (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/77/eng@2013-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.