Feisal Abdinoor Issack v I.E.B.C & 2 others [2017] KEMC 4 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the court could compel production of records concerning non-parties
It could not; the Registrar of Persons and the presiding officers whose details were sought were not parties to the petition
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.
Burden of proof in election petitions
The burden of proving kinship between presiding officers and the 3rd respondent lay on the petitioner, who could not shift it by discovery orders
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.
Correct procedural basis for the application
The application was brought under the wrong rules of the Election Petition Rules 2017 and had no legal basis
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.
Privacy rights of third parties
Granting the orders would violate Rule 4(1) of the Election (Parliamentary and County) Petitions Rules 2017 and Article 31 of the Constitution
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.
Legal principles established
#- 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
#- 1.Dismissal of the petitioner/applicant's notice of motion dated 30th October 2017
- 2.Costs of the application awarded to the 1st and 2nd respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.