Bakari Hassan Juma v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2013] KEMC 97 (KLR)
The bottom line
#A Kenyan court allowed an election petitioner to withdraw and be replaced, ruling that election petitions belong to the public and cannot simply be killed off by one person.
What this practically means
#Executive summary
#Key legal issues
#Whether a petition can be withdrawn and a petitioner substituted where the petitioner denies signing the petition
The court allowed withdrawal and substitution, holding that the petition's life is not dependent on an individual and that substitution is provided for by the Rules; striking out would leave no forum since the filing period had expired
The court noted the petitioner was aware of the intended petition but appears to have agreed only to be a witness; the ID copy annexed bore no signature for comparison, so the signature dispute could not be resolved on the papers. Given the sui generis, public-interest nature of election petitions, and the mandatory filing timeline, denying substitution would drive the dispute from the seat of justice.
Whether the disputed signature could be resolved on the evidence
The court could not make a finding because the ID copy annexed to the petition bore no identification mark or signature for comparison
The petitioner's identity card copy was annexed but lacked the identification mark or signature by which the court could compare and determine authorship of the petition. Faced with accusations and counter-accusations, resolving all allegations would consume time and defeat the spirit and intendment of Rules 4 and 5 of the Election Petition Rules.
Legal principles established
#- Election petition proceedings are sui generis and cannot be treated like ordinary civil proceedings
- An election petition is a matter of public interest whose life is not hinged on the existence of an individual petitioner
- The power to strike out a petition is a draconian remedy to be used sparingly and in plain cases
Court orders
#- 1.The applications dated 2/5/13 and 6/5/13 are allowed; the petitioner is substituted by Twahir Abdulkarim Mohammed
- 2.Costs to the 1st, 2nd and 3rd respondents in respect of both applications, borne by the new petitioner and to be drawn from the security of costs already deposited in court upon finalization of the matter
- 3.The substituted petitioner to deposit a fresh security of costs of Kshs.100,000/- on or before 17/5/13, in default of which the respondents may apply for striking out of the petition
- 4.The 1st respondent to comply with Rule 2 of the Election Petition Rules by filing in court the result of the election by 17/5/2013
- 5.The substituted petitioner to file and serve any further witness affidavits upon the respondents on or before 17/5/2013
- 6.The parties to agree on the petitioner's application dated 10/4/13, in default to file responses thereto, with a hearing date on 20/5/2013 and mention on 20/5/13
- 7.Respondents to be supplied with certified copies of the proceedings and ruling upon payment of requisite court fees
- Jurisdiction invoked
- Election (Parliamentary and County Elections) Petition Rules, 2013 (Rule 4; Rules 2, 5, 26, 27)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakari Hassan Juma v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2013] KEMC 97 (KLR)", Case Analysis (2013). Election Petition (E.P.) - applications dated 2/5/2013 and 6/5/2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/97/eng@2013-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.