Yusuf Musa Mbaya v Independent Electoral & Boundaries Commission (I.E.B.C) & 4 others [2017] KEMC 2 (KLR)
The bottom line
#A Meru election petition challenging county assembly nominations was struck out because the petitioner never paid the required Kshs. 100,000 security or served the respondents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioner paid the requisite security for costs within the time stipulated by law, and if not, the consequences of such non-compliance
- 2.Whether the Respondents/Interested Party were served with the Petition as required by law
- 3.Whether the Respondents and the Interested Party are entitled to costs, and if so, what sum is awardable
Key legal issues
#Non-deposit of security for costs under Section 78 of the Elections Act
Failure to deposit the mandatory Kshs. 100,000 security barred further hearing of the Petition and justified its dismissal/struck out
Section 78(1) and (2)(c) of the Elections Act 2011 requires a petitioner to deposit security of Kshs. 100,000 for a petition against a member of a county assembly not more than ten days after presentation. Rule 13 of the 2017 Rules reinforces this. Section 78(3) provides that where no deposit is made and an objection stands, no further proceedings shall be heard. No deposit was ever made and no extension of time was sought; the Petitioner was therefore in clear and flagrant breach, and the court adopted the cited authorities holding such non-compliance incurably defective and an abuse of process.
Failure of service of the Petition
The Petitioner failed to serve the Petition as required by law; no Affidavit of Service was on record and service was denied
Service remains mandatory notwithstanding its liberalised regime, as held in the Machakos petition and the Supreme Court's reading of Article 159(2)(d). The 3rd Respondent learnt of the petition through the media; the 2nd Respondent's service was undocumented; there was no Affidavit of Service for the Interested Party. The Petitioner consequently breached the statutory service requirements and could not prosecute the Petition.
Costs of the struck-out petition
Costs awarded to the 2nd and 3rd Respondents and the Interested Party, capped at Kshs. 500,000 each; no costs to the 1st and 4th Respondents
Sections 78, 84 of the Elections Act and Rule 36 of the 2017 Rules empower the court to award costs which follow the cause, with the party causing unnecessary expense bearing them. The Petitioner filed a doomed petition, undertook to withdraw it but never filed the Notice, then ceased attending court, amounting to vexatious conduct. Only the 2nd and 3rd Respondents and the Interested Party actively defended, so costs were limited to them, capped at Kshs. 500,000 each as sought.
Legal principles established
#- A petitioner who fails to deposit the mandatory security for costs within the prescribed time cannot have the petition further heard
- Failure to serve an election petition as required by law vitiates the petition; Article 159 does not excuse non-compliance with mandatory service requirements
- Costs in an election petition follow the cause and the party causing unnecessary expense bears them whether successful or not
Court orders
#- 1.Petition Number 1 of 2017 struck out with costs to the 2nd and 3rd Respondents and the Interested Party
- 2.Petitioner to bear the costs of each of the Respondents and the Interested Party for the Petition, capped at Kshs. 500,000 for each of the three aforesaid parties
- 3.The Notice of Motion filed under a Certificate of Urgency seeking injunctive orders dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2017 (county assembly election petition)
Relief refused
#Declaration that the 2nd and 3rd Respondents do not qualify to represent ethnic minorities in the Meru County Assembly
Petition struck out for failure to deposit security and failure to serve
Order directing the 1st Respondent to revoke the nomination of the 2nd and 3rd Respondents
Petition struck out for non-compliance with statutory requirements
Interlocutory injunctive orders restraining the swearing in of the 2nd and 3rd Respondents
Motion unprosecuted and overtaken by events
Costs
Petition struck out with costs to the 2nd and 3rd Respondents and the Interested Party; the Petitioner to bear the costs of each of the Respondents and the Interested Party capped at Kshs. 500,000 for each of the three aforesaid parties; no costs accrue to the 1st and 4th Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. It is hereby ordered by this Court that this present Petition Number 1 of 2017 be and is hereby struck out with costs to the 2nd and 3rd Respondents and the Interested Party.
2. The Petitioner shall bear the costs for each of the Respondents and the Interested Party for the Petition capped at Kshs. 500,000 for each of the three aforesaid parties.
Where a Petitioner does not deposit security as required by this section, or if an objection is allowed and not removed, no further proceedings shall be heard on the Petition and the respondent may apply to the election Court for an order to dismiss the Petition and for the payment of the respondent's costs.
although the regime of service was liberalised, the requirement of Service was not dispensed with and service is still a requirement under the Constitution, the (Election) Act and the Rules.
The essence of that provision is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties.
This Motion has since been overtaken by events, and in any case, the same was unprosecuted is dismissed with costs.
Issues in the judgment
#The judgment alternately describes the disposition as striking out and as dismissal, and the interlocutory Motion is also dismissed
The final disposition is not numbered beyond item 2 and the ruling appears to be a dismissal for non-compliance recorded in the form of findings rather than a formal dismissal order
Internal inconsistency in the recount of appearances - one passage dated 'On 4/12/2017' recites absence of Petitioner's Counsel, followed by another passage beginning 'Come 4/12/2017' with the Petitioner's Counsel present
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abdiwahab Sheikh Osman Hathe v Mohamed Ali Sheikh & 3 others [2017] KEMC 41 (KLR)[2017] KEMC 41 (KLR)14 Dec 2017
Cite this brief
#Cite this brief
Caselaw, "Yusuf Musa Mbaya v Independent Electoral & Boundaries Commission (I.E.B.C) & 4 others [2017] KEMC 2 (KLR)", Case Analysis (2017). Election Petition Number 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/2/eng@2017-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.