Abdullahi Maalim Alio v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 3 (KLR)
The bottom line
#A Kenyan election petition was struck out because the petitioner filed it without a proper supporting affidavit, and the court could not fix the mistake after 28 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the affidavit sworn on 2nd September 2017 could serve as the supporting affidavit required by Rules 8(4)(b) and 12(1)
It could not; it was in support of an application, did not contain the reliefs or grounds sought, and did not conclude with a prayer for relief, so the petition was unsupported
The court examined the affidavit filed at paragraph 44 and found it was sworn in support of an application, not the petition. It neither set out the grounds on which relief was sought nor concluded with a prayer for relief. Following High Court, Court of Appeal and Supreme Court decisions, the requirements of Rules 8 and 12 are mandatory and substantive, going to the root of the petition.
Whether Article 159(2)(d) of the Constitution could cure the defect
No; the defect was incurable and Article 159(2)(d) does not oust the obligation of litigants to comply with procedural imperatives
Relying on the Supreme Court in Zacharia Okoth Obado, the court held that Article 159(2)(d) was never meant to excuse non-compliance with mandatory procedural requirements. Public interest in petitions must be pursued within the law; courts cannot abrogate the law to assuage public interest. Public interest must be considered within the realms of the law, not outside it.
Legal principles established
#- A supporting affidavit to a petition and affidavits of witnesses in an election petition are integral parts of a petition that must be filed with the petition within the 28-day constitutional window; a petition filed without them is not competent
- Striking out an election petition for non-compliance with Rule 8 is a drastic step to be taken sparingly and only in the clearest of cases where the defect is incurable
Court orders
#- 1.The application by counsel for the 3rd Respondent for leave to file an application to strike out the petition is allowed
- 2.The petition is struck out
- 3.Costs of the petition to the Respondents
- Jurisdiction invoked
- Elections Act 2011 and the Elections (Parliamentary and County) Petition Rules 2017; Article 87(2) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdullahi Maalim Alio v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 3 (KLR)", Case Analysis (2017). Election Petition No 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/3/eng@2017-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.