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MagistratePartially AllowedElection Petition dated 6/9/2017 (not stated)· [2017] KEMC 5 (KLR)

Kitavi Sammy v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 5 (KLR)

Chief Magistrate's Court
24 November 2017
MMM. Murage
1,738 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 it failed to state the election results and how they were declared, as the rules require.

What this practically means

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Executive summary

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This is a ruling by Hon. M. Murage, Chief Magistrate, on an application dated 6 November 2017 seeking to strike out an election petition dated 6 September 2017 and its supporting affidavit on the ground that they failed to state the final results of the election and the manner in which they were declared, contrary to Rule 8(1)(c) and Rule 12(2) of the Elections (Parliamentary & County Elections) Petitions Rules 2017. The 3rd respondent swore the supporting affidavit; the 1st and 2nd respondents supported the application. The petitioner conceded the omission but argued it was curable, a matter of form not substance, and relied on Article 159(2)(d), Section 80 of the Elections Act, and authorities urging a flexible, overriding-objective approach. The court held there was no dispute that the results and manner of declaration were omitted, and framed the sole issue as whether the omission was fatal or curable. Following Martha Karua (Kerugoya) and Jimmy Mkala Kazungu (Mombasa), and rejecting the lenient approach in William Kinyanji Onyango, the court held the rules mandatory, placing the burden of pleading results on the petitioner, unshifted by IEBC's duty to file results at hearing. Reliance on Charles Kamuren was distinguished. The petition was found incurably defective, struck out with costs to the respondents on 24 November 2017.

Key legal issues

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01

Whether failure to state the election results and manner of declaration in a petition is fatal or curable

Holding

The omission is fatal; the petition is incurably defective and was struck out

Reasoning

Rule 8(1)(c) requires a petition to state the results of the election and how declared, and Rule 12(2) echoes this. The rules are substantive, not merely technical, and the burden is on the petitioner, not shifted by IEBC's duty to file results. Election petitions are time-bound, and the rules facilitate expeditious resolution. Authorities holding non-compliance fatal were preferred over those favouring a flexible approach.

p. 2
02

Whether Article 159(2)(d) (substantive justice over technicalities) can cure the defect

Holding

No - the statutory requirement cannot be bypassed

Reasoning

Parliament, pursuant to Article 87(1), legislated a mandatory mechanism for timely settlement of electoral disputes. A party choosing not to comply renders the petition incompetent. The court noted a contrary view (Kimondo J) favouring substantive justice, but held each court must assess the omissions; here they were material because validity of the result was an issue.

p. 3

Legal principles established

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  • Rule 8(1)(c) and Rule 12(2) of the Elections (Parliamentary & County Elections) Petitions Rules 2017 are mandatory; failure to state the results of the election and how declared renders a petition incurably defective

Court orders

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  1. 1.The Petition dated 6/9/2017 is struck out
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Elections (Parliamentary & County Elections) Petitions Rules 2017Rule 8(1)(c), Rule 12(2)
  • Elections Act 2011Section 76(4), Section 75(2), Section 80
  • Constitution of Kenya 2010Article 159, Article 87(1)

Cases cited (6)

  • Hon. Martha Wangari Karua & another vs. The Independent Electoral & Boundaries Commission and 3 others
    Election Petition No. 2 of 2017
  • Jimmy Mkala Kazungu vs. Independent Electoral Commission and 2 others
    Election Petition No. 9 of 2017
  • Charles Kamuren vs. Grace Jelagat Kipchoim & 2 others
    Election Petition No. 1 of 2013
  • Daniel Kipkemoi Bett & 7 others v. Margaret Wanjiku Chege
    Civil Appeal (Application) No. 152 of 2009 (unreported)
  • Deepak Chamanlal Kamani & Another vs. Kenya Anti-Corruption Commission & 3 others
    Civil Appeal (Application) No. 152 of 2009 (unreported)
  • William Kinyanji Onyango
    EP 2/2013
Jurisdiction invoked
Elections (Parliamentary & County Elections) Petitions Rules 2017; Article 87(1) of the Constitution (electoral dispute settlement)

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, "Kitavi Sammy v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 5 (KLR)", Case Analysis (2017). Election Petition dated 6/9/2017 (not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/5/eng@2017-11-24

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