David Ndungu Ndegwah v Independent Electoral and Boundaries Commission & 5 others [2017] KEMC 10 (KLR)
The bottom line
#A Nyahururu court struck out an election petition over nomination disputes because the petitioner filed his affidavit and paid security costs late.
What this practically means
#Executive summary
#Key legal issues
#Whether the election court had jurisdiction over a petition challenging nominations of county assembly members
The court had jurisdiction because the dispute arose after gazettement, at which point IEBC's mandate ends and the election court's jurisdiction is triggered
The court relied on the Supreme Court's decision in Election Petition No. 1 of 2015, holding that a gazette notice signifies completion of election through nomination and shifts consequential disputes to the election court. The court could not overrule the Chief Justice's gazettement of it as an election court, and election petitions by nature are constitutional matters assigned to courts.
Whether the supporting affidavit filed outside the 28-day statutory period could sustain the petition
No; the affidavit was filed outside the constitutional and statutory timelines and could not be admitted, so the petition could not stand
Article 87(2) of the Constitution and section 76(1)(a) of the Elections Act fix a 28-day period for filing petitions, and Rules 8 and 12 require a supporting affidavit with the petition. Rule 19(2) ousts the court's discretion to extend time for filing, hearing or determining a petition. The affidavit filed 22 days late, without leave, could not be allowed; article 159(2)(d) could not cure the defect since it was not a mere procedural technicality.
Whether late deposit of security for costs without leave rendered the petition defective
Yes; security deposited 27 days after filing, without leave or explanation, was a substantive non-compliance requiring striking out
Section 78(1) of the Elections Act requires deposit of security within ten days of presenting a petition, and section 78(3) bars further proceedings where security is not deposited. Unlike cases where extension was sought and granted, the petitioner here neither sought leave nor gave reasons. The requirement is substantive and goes to the root of the petition.
Legal principles established
#- After gazettement of nominated members following general elections, jurisdiction over nomination disputes shifts from IEBC to the election court
- Timelines for filing election petitions and supporting affidavits are fixed and cannot be extended by the court
- A petition without a supporting affidavit filed within the statutory period cannot stand
- Deposit of security for costs is a substantive requirement going to the root of the petition
Court orders
#- 1.Preliminary objections upheld and the petition struck out
- 2.Costs awarded to the respondents pursuant to section 78(3) of the Elections Act
- 3.A certificate of the determination to be issued to IEBC as required by law
- 4.Notification to be given to the Speaker of Nyandarua County Assembly
- Jurisdiction invoked
- Articles 22, 23, 87 and 258 of the Constitution of Kenya 2010; Sections 75 and 78 of the Elections Act 2011; Election (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Ndungu Ndegwah v Independent Electoral and Boundaries Commission & 5 others [2017] KEMC 10 (KLR)", Case Analysis (2017). Election Petition No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/10/eng@2017-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.