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MagistrateDismissedNot stated in the judgment· [2013] KEMC 86 (KLR)

Independent Electoral & Boundaries Commission [2013] KEMC 86 (KLR)

High Court of Kenya (Election Court), Mombasa
10 July 2013
SRS.N. Riechi
881 words in judgment
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The bottom line

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The High Court in Mombasa dismissed an election petition because the petitioner never paid the required security deposit and filed the case in the wrong form.

What this practically means

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Executive summary

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The petitioner, Mwanahamisi Omar Komora, filed a petition on 11th March 2013 erroneously premised on Article 140 of the Constitution and the Supreme Court Rules, challenging the Kadzandani Ward County Assembly election of 4th March 2013 in Nyali Constituency, Mombasa County. She alleged that her name was omitted from ballot papers at Baraka High School and Mwatamba Grounds polling stations, depriving her supporters of the vote, and sought certiorari to quash the Returning Officer's decision, mandamus compelling I.E.B.C. to repeat the election, and costs. The respondent was represented by A.B. Patel & Patel. Counsel for the petitioner twice obtained enlargement of time to deposit the security for costs required by Section 78 of the Elections Act 2011 (KES 100,000 for a county assembly petition) but never made the deposit. The respondent applied for dismissal. The court held that under Section 78(3), failure to deposit security on a respondent's application warrants dismissal with costs, and that although the court may enlarge time where the application is prompt and without prejudice, the petitioner was unable, unwilling or refused to comply. The court further found the petition incompetent: it omitted the mandatory averments and the prayers prescribed by Rule 10(4) of the Election (Parliamentary and County Elections) Petition Rules 2013, did not name or join the successful candidate, and sought prerogative orders properly available in the High Court. The petition was dismissed with costs to the respondent.

Key legal issues

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01

Effect of failure to deposit security for costs under Section 78 of the Elections Act

Holding

The petition is liable to dismissal on the respondent's application where the deposit is not made within the prescribed or enlarged time

Reasoning

Section 78 requires a petitioner to deposit security within ten days of presentation. The court may enlarge time on prompt application without inordinate delay and without prejudice to the respondent. Here time was enlarged twice but the petitioner never deposited, entitling the respondent to dismissal with costs under Section 78(3).

p. 2
02

Competency of a petition premised on Article 140 and seeking certiorari and mandamus

Holding

The petition was incompetent; Article 140 applies to presidential elections and the proper relief in an election petition is a declaration under Rule 10(4), with prerogative orders being available in the High Court

Reasoning

The petition was erroneously brought under Article 140 for a county assembly election. Rule 10(4) prescribes prayers such as a declaration on validity of election or a fresh election. The petition sought certiorari and mandamus, omitted the mandatory averments, and did not name or join the candidate whose election was questioned.

p. 2

Legal principles established

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  • Under Section 78(3) of the Elections Act, where a petitioner does not deposit security for costs, no further proceedings shall be heard and the respondent may apply for dismissal of the petition with costs
  • An election court may enlarge time for deposit of security where the application is prompt, without inordinate delay and without prejudice to the respondent
  • An election petition must conclude with appropriate relief as prescribed by Rule 10(4) of the Election (Parliamentary and County Elections) Petition Rules 2013, and must name the candidate whose election is challenged and plead the results; prerogative orders are not the proper relief

Court orders

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  1. 1.Dismissal of the petition
  2. 2.Costs of the petition awarded to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 140
  • Supreme Court RulesRules 12, 13, 14
  • Elections Act No. 24 of 2011Section 78
  • Election (Parliamentary and County Elections) Petition Rules 2013Rules 10(4), Form E.P.1
Jurisdiction invoked
Article 140 of the Constitution and the Elections Act No. 24 of 2011 (as an election court hearing a petition under the Election (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, "Independent Electoral & Boundaries Commission [2013] KEMC 86 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/86/eng@2013-07-10

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