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MagistrateStruck OutElection Petition No 1 of 2017· [2017] KEMC 3 (KLR)

Abdullahi Maalim Alio v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 3 (KLR)

Chief Magistrate's Court (Election Court)
4 December 2017
1,197 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This first-instance election court ruling by P.N. Areri (SRM) dealt with an oral application by counsel for the 3rd Respondent for leave to file an application to strike out the election petition on the ground that it was not supported by an affidavit sworn by the petitioner, contrary to Rules 8(4)(b) and 12(1) of the Elections (Parliamentary and County) Petition Rules 2017. Counsel for the petitioner opposed the application while counsel for the 1st and 2nd Respondents supported it. The court reviewed the mandatory contents of a petition under Rule 8 and held that while election courts may excuse minor deviations under Article 159(2)(d), striking out is a drastic step reserved for the clearest cases of incurable defect. Examining the affidavit filed at paragraph 44, sworn on 2nd September 2017, the court found it supported an application rather than the petition: it did not contain the reliefs or grounds sought and did not conclude with a prayer for relief. Holding that a supporting affidavit and witnesses' affidavits are integral parts of a petition that must be filed within the 28-day constitutional window, the court found the petition incurably defective and incompetent. Guided by the Supreme Court's pronouncements in Raila Odinga and Zacharia Okoth Obado, it held that Article 159(2)(d) does not oust litigants' obligation to comply with procedural imperatives, and that it had no discretion to allow a supporting affidavit after expiry of the 28 days. The application was allowed and the petition struck out with costs to the Respondents.

Key legal issues

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01

Whether the affidavit sworn on 2nd September 2017 could serve as the supporting affidavit required by Rules 8(4)(b) and 12(1)

Holding

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

Reasoning

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.

p. 2
02

Whether Article 159(2)(d) of the Constitution could cure the defect

Holding

No; the defect was incurable and Article 159(2)(d) does not oust the obligation of litigants to comply with procedural imperatives

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application by counsel for the 3rd Respondent for leave to file an application to strike out the petition is allowed
  2. 2.The petition is struck out
  3. 3.Costs of the petition to the Respondents

Authorities

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Legislation

  • Elections Act2011
  • Elections (Parliamentary and County) Petition RulesRules 8, 8(4)(b), 12, 12(1), 12(1)(b)
  • Constitution of KenyaArticles 159(2)(d), 87(2)

Cases cited (7)

  • Dickson Mwendwa Kithinji Vs Gatirau Peter Munya and 2 Others
    Civil Appeal No. 38 of 2013 Nyeri
  • M'Nkiria Petkay Shen Miriti Vs Ragwa Samuel Mbae and 2 Others
    Election Petition No. 4 of 2013 Meru
  • D.T. Dobie & Company (K) Limited Vs Mudina
    (1982) KLR 1
  • Hosea Mundin Kiplagat Vs Sammy Komen Mwaita & 2 others
    Election Petition No. 11 of 2013 Nairobi
  • Raila Odinga & 5 others Vs IEBC & 3 others
    Supreme Court Petition No. 5 of 2013
  • AMINA HASSAN AHMED Vs Returning Officer Mandera County & 2 Others
    (2013) eKLR
  • Zacharia Okoth Obado Vs Edward Akongo Oyugi and 2 others
    (2014) eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.