Kithikii Kavindi Allan v Anntony John & 2 others [2017] KEMC 6 (KLR)
The bottom line
#A Kenyan election petition was struck out because it failed to state the election results and how and when they were declared.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition complies with Rule 8(1) of the Elections (Parliamentary & County Elections) Petitions Rules 2017
- 2.Whether the supporting affidavit complies with Rule 12(2)
- 3.Whether the admitted statement that the elections went on smoothly deprives the petitioner of a cause of action
- 4.Whether the omissions are fatal defects requiring striking out, or curable technicalities under Rule 5(1) and Article 159(2)(d) of the Constitution
Key legal issues
#Mandatory content requirements of Rule 8(1) and Rule 12(2)
The petition failed to state the petitioner's address, the results of the election, how they were declared, and the date of declaration; the affidavit equally failed under Rule 12(2). These omissions were fatal because they bore directly on the relief sought.
The court reviewed each Rule 8(1) requirement against the petition and affidavit. The petitioner's address was absent from the petition; results and manner of declaration were not stated (only who won, sourced from a website); the date of declaration was omitted. Since the petitioner sought a determination that the 1st respondent was not validly declared, stating how the declaration was done and the results was crucial. Omissions in the affidavit mirrored those in the petition, so the deeming rule could not save the petition.
Alleged admission that elections were conducted well
The introductory statement that the elections went on smoothly is not an admission defeating the cause of action; it must be read in context of the entire petition.
The 2nd respondent argued that the petitioner's own statement admitting the elections were conducted well meant there was no cause of action. The court held these were introductory remarks that cannot be taken as concluding remarks or read in isolation; the entire petition must be read in context.
Curability under Rule 5(1) and Article 159(2)(d)
The defects could not be cured by the discretion in Rule 5(1) and Article 159(2)(d) because they were fatal and went to the root of the petition.
Although counsel for the petitioner invoked Rule 5(1) and Article 159(2)(d) on substantive justice, the court found that the omissions - the results and the date and manner of declaration - were essential to the relief sought. They rendered the petition incomplete and incurably defective, following the Martha Karua and Jimmy Mukala decisions.
Legal principles established
#- An affidavit in support of a petition and documents annexed to it are deemed part of the petition and part of the pleadings
- Whether an omission in an election petition is fatal or a mere technicality depends on examining the allegations and relief sought in each case
Court orders
#- 1.The petition dated 5th September, 2017 is struck out as incurably defective in form and substance
- 2.Costs of the application to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Elections Act, 2011 and Rules 3, 4, 8(1) and 12(2) of the Elections (Parliamentary & County Elections) Petitions Rules, 2017
Relief refused
#Petitioner's application to have the defects excused under Rule 5(1) and Article 159(2)(d)
The omissions bore directly on the relief sought - the results and manner/date of declaration - and were fatal, not curable technicalities
Costs
Costs to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court therefore finds the petition is incurably defective in form and substance. I strike it with costs to the Respondents.
A cardinal principal in dealing with mandatory omission is that each case ought to be examined on its own merit. Some omission are merely technicality while others go to the root of the Petition and such omission renders them fatal.
The petitioner failure to state the results of the election and how they were declared is a fatal omission. Announcement in F.M Stations is not declaration. Declaration comes before announcement.
An affidavit in support of the petition and any documents annexed thereto are deemed to be part of the petition and therefore part of the pleadings in the case
Issues in the judgment
#Petitioner's name and precise petition case number are not stated in the judgment; parties identified only by role
Internal contradiction on whether Rule 12(2) was fully complied with via the affidavit: the court first notes the affidavit supplies the petitioner's address, then later finds the affidavit does not fully comply
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithikii Kavindi Allan v Anntony John & 2 others [2017] KEMC 6 (KLR)", Case Analysis (2017). Election Petition No. __ of 2017 (Petition dated 5th September, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/6/eng@2017-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.