Eric Soita Patroba v Martin Wafula Wawire & 2 others [2013] KEMC 100 (KLR)
The bottom line
#A Kenyan election petition court struck out a 'response to a response' but let both sides reply through further affidavits, balancing strict rules with fairness.
What this practically means
#Executive summary
#Key legal issues
#Permissibility of filing a response to a response in an election petition
The Rules do not allow it; the document was expunged.
Counsel for the 1st respondent relied on Rule 17(1) and Rule 14(1), submitting that Rule 17 provides only for further affidavits and that strict timelines preclude further pleadings. The court agreed that no provision permits a response to a response, but tempered the expungement by granting both sides leave to file further affidavits in the interest of justice, avoiding prejudice to the petitioner who had identified discrepancies in Forms 35 and the principal register.
Balancing procedural strictness with substantive justice
Although the response was expunged, the petitioner was not shut out; leave was granted for further affidavits by both parties.
The petitioner argued that expungement would gag him from responding to new matters and discrepancies in Forms 35, and urged substantive justice under Rule 17(1). The court expunged the document but preserved fairness by allowing the petitioner 4 days to file a further affidavit and giving respondents a matching 4-day window after service, ensuring the new material could still be placed before the court.
Legal principles established
#- The Election (Parliamentary and County Elections) Petitions Rules, 2013 make no provision for a petitioner to file a response to a respondent's response to the petition; pleadings close on filing of the response, with further affidavits the permissible mode of reply.
Court orders
#- 1.The response to the response to petition filed by the petitioner is expunged from the record
- 2.Petitioner granted leave to file a further affidavit in support of the petition within 4 days
- 3.Respondents granted leave to file further affidavits in support of their response within 4 days of being served
- 4.No orders as to costs
- 5.Leave to appeal granted to the parties
- Jurisdiction invoked
- Election (Parliamentary and County Elections) Petitions Rules, 2013 (Rule 17(1) and Rule 14(1))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eric Soita Patroba v Martin Wafula Wawire & 2 others [2013] KEMC 100 (KLR)", Case Analysis (2013). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/100/eng@2013-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.