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MagistrateDismissedElection Petition for Member of County Assembly, Township Ward (number not stated)· [2017] KEMC 4 (KLR)

Feisal Abdinoor Issack v I.E.B.C & 2 others [2017] KEMC 4 (KLR)

Magistrates' Court (Election Petition)
21 November 2017
832 words in judgment
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The bottom line

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A Kenyan court dismissed an election petitioner's bid to obtain presiding officers' identity records, ruling it a fishing expedition that would breach third parties' privacy rights.

What this practically means

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Executive summary

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The petitioner/applicant in an election petition for the Member of County Assembly, Township Ward, moved the court by notice of motion dated 30th October 2017 under Rules 6(2)(b), 3, 15 and 28(4)(c) of the Election Petition Rules 2017 and Articles 35 and 159 of the Constitution, seeking orders that the Registrar of Persons produce Form 136A for five Identity Card Numbers belonging to presiding officers. The petitioner intended to use the records to demonstrate family ties between the 3rd respondent, Hon. Adan Maalim Abdullahi, and six presiding officers, and their lack of impartiality. The 1st and 2nd respondents (I.E.B.C. and Adan Harar Noor) filed grounds of opposition, arguing the petitioner lacked evidence, was on a fishing expedition, and that the orders would widen the petition and cause delay. The 3rd respondent filed no response. In submissions the petitioner invoked the right of access to information under Articles 35(1)(a) and (b), relying on two High Court authorities, while the respondents stressed the petitioner's burden of proof and the privacy of the individuals concerned. The magistrate found that the Registrar of Persons and the presiding officers were not parties, that the burden of proving kinship lay on the petitioner, that the application was brought under the wrong rules and had no legal basis, that petitions under Articles 35 and 159 belong in the High Court, and that granting the orders would violate Rule 4(1) of the Election (Parliamentary and County) Petitions Rules 2017 and Article 31 on privacy. The application was dismissed with costs to the 1st and 2nd respondents.

Key legal issues

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01

Whether the court could compel production of records concerning non-parties

Holding

It could not; the Registrar of Persons and the presiding officers whose details were sought were not parties to the petition

Reasoning

The court found that orders could not issue against or in respect of persons not joined to the petition. The Registrar of Persons was not a party, and the individuals whose registration details were sought were likewise not parties, making the application procedurally defective.

p. 2
02

Burden of proof in election petitions

Holding

The burden of proving kinship between presiding officers and the 3rd respondent lay on the petitioner, who could not shift it by discovery orders

Reasoning

The court held that the petitioner, having made allegations of family ties and bias, bore the evidential burden and could not use an application for third-party records as a substitute for evidence. The 1st and 2nd respondents had argued the petitioner lacked evidence and was on a fishing expedition, a contention the court accepted.

p. 2
03

Correct procedural basis for the application

Holding

The application was brought under the wrong rules of the Election Petition Rules 2017 and had no legal basis

Reasoning

The court found the motion, though premised on Rules 6(2)(b), 3, 15 and 28(4)(c), was misconceived under the applicable rules. Further, any petition founded on Articles 35 and 159 of the Constitution belonged in the High Court, not the magistrates' court hearing the election petition.

p. 2
04

Privacy rights of third parties

Holding

Granting the orders would violate Rule 4(1) of the Election (Parliamentary and County) Petitions Rules 2017 and Article 31 of the Constitution

Reasoning

The disclosure of registration details of presiding officers, who were not parties, would amount to an unwarranted invasion of their privacy and would prejudice them. The respondents had argued that disclosure would involve unwarranted invasion of privacy of the individuals concerned and delay the petition.

p. 2

Legal principles established

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  • The burden of proving that presiding officers were relatives of a respondent lies on the petitioner
  • Disclosure of third parties' registration details without legal basis would breach privacy rights under Article 31 of the Constitution

Court orders

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  1. 1.Dismissal of the petitioner/applicant's notice of motion dated 30th October 2017
  2. 2.Costs of the application awarded to the 1st and 2nd respondents

Authorities

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Legislation

  • Election Petition Rules 2017Rules 6(2)(b), 3, 15, 28(4)(c)
  • Election (Parliamentary and County) Petitions Rules 2017Rule 4(1)
  • Constitution of KenyaArticles 35, 35(1)(a), 35(1)(b), 38, 48, 50, 159, 31

Cases cited (2)

  • Nairobi Law Monthly Vs Kenya Electricity Generating Company and Another
    Nairobi High Court Petition No. 278 of 2011
  • Martha Kerubo Moracha Vs The University of Nairobi
    Petition No. 459 of 2016
Jurisdiction invoked
Election of Member of County Assembly under the Election Petition Rules 2017 (application invoked Rules 6(2)(b), 3, 15 and 28(4)(c) of the Election Petition Rules 2017 and Articles 35 and 159 of the Constitution)

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, "Feisal Abdinoor Issack v I.E.B.C & 2 others [2017] KEMC 4 (KLR)", Case Analysis (2017). Election Petition for Member of County Assembly, Township Ward (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/4/eng@2017-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.