Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistratePartially AllowedElection Petition (E.P.) - applications dated 2/5/2013 and 6/5/2013· [2013] KEMC 97 (KLR)

Bakari Hassan Juma v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2013] KEMC 97 (KLR)

Magistrates' Court (Election Petition)
14 May 2013
1,064 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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

#
This first-instance ruling of a magistrates' court in an election petition dealt with two interrelated applications arising after the court had convened on 2/5/2013 under Rule 4 of the Election (Parliamentary and County Elections) Petition Rules, 2013. The named petitioner, Bakari Hassan Juma, applied to withdraw the petition, denying that he had signed or filed it and contending that he had been approached only as a witness and later discovered his name had been used as petitioner. Twahir Abdulkarim Mohammed applied to be substituted as petitioner, asserting it was in the interest of justice. The respondents did not oppose withdrawal but argued that with the petitioner's denunciation there was no petition left, so substitution did not arise. The court observed that the ID copy annexed to the petition bore no signature or identification mark enabling comparison, leaving the signature dispute unresolvable on the papers, and that the petitioner had been aware of, and campaigned for, the intended substitution applicant. Holding that election petitions are sui generis, of public interest, and not hinged on any individual, and that striking out is a draconian remedy to be used sparingly and only in plain cases - the circumstances here not being plain, and the filing window having closed - the court allowed both applications. The substituted petitioner was to deposit fresh security of Kshs.100,000 by 17/5/13, costs of both applications were awarded to the three respondents payable from the deposited security, the 1st respondent was ordered to file the election result, and further case-management directions were given.

Key legal issues

#
01

Whether a petition can be withdrawn and a petitioner substituted where the petitioner denies signing the petition

Holding

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

Reasoning

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.

p. 2
02

Whether the disputed signature could be resolved on the evidence

Holding

The court could not make a finding because the ID copy annexed to the petition bore no identification mark or signature for comparison

Reasoning

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.

p. 2

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. 1.The applications dated 2/5/13 and 6/5/13 are allowed; the petitioner is substituted by Twahir Abdulkarim Mohammed
  2. 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. 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. 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. 5.The substituted petitioner to file and serve any further witness affidavits upon the respondents on or before 17/5/2013
  6. 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. 7.Respondents to be supplied with certified copies of the proceedings and ruling upon payment of requisite court fees

Authorities

#

Legislation

  • Election (Parliamentary and County Elections) Petition Rules, 2013Rule 2
  • Election (Parliamentary and County Elections) Petition Rules, 2013Rules 4 and 5
  • Election (Parliamentary and County Elections) Petition Rules, 2013Rules 26 and 27

Cases cited (2)

  • Peter Ngunju Gakunga & Dedan Kiragu Kingori v Fredrick Maina & Joseph A. Gathenji
    E.P No. 47/1993
  • Robert Nelson Ngethe v Mbogori Njeru & Another
    [2005] eKLR
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.