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MagistrateStruck OutElection Petition No. 2 of 2017· [2017] KEMC 10 (KLR)

David Ndungu Ndegwah v Independent Electoral and Boundaries Commission & 5 others [2017] KEMC 10 (KLR)

Chief Magistrates Court at Nyahururu
6 December 2017
6,616 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by Chief Magistrate J.N. Wanjala resolved two preliminary objections in an election petition challenging the nomination of four Jubilee Party members to the Nyandarua County Assembly. The petitioner, an unsuccessful aspirant in the persons-with-disability category, sought nullification of the nominations, a declaration that the party list was unconstitutional for failing to prioritize persons with disability and youth, and an order reconstituting the list to include him. The respondents objected on three grounds: that the court lacked jurisdiction because nomination disputes lie with IEBC under Article 88(4)(e) and section 74(1) of the Elections Act, and because the prayers were constitutional/human-rights claims for the High Court; that the supporting affidavit was filed 22 days after the petition and outside the 28-day statutory period; and that security for costs was deposited 27 days late without leave. The court found it had jurisdiction: following the Supreme Court's decision in Election Petition No. 1 of 2015, gazettement of the nominated members ended IEBC's mandate and shifted consequential disputes to the election court. However, on the affidavit and security issues, the court held the timelines mandatory and unextendable under Rule 19(2); article 159(2)(d) could not cure the defects. The preliminary objections were upheld, the petition struck out, costs awarded to the respondents under section 78(3), and a certificate of determination ordered issued to IEBC and notification to the Speaker of Nyandarua County Assembly.

Key legal issues

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01

Whether the election court had jurisdiction over a petition challenging nominations of county assembly members

Holding

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

Reasoning

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.

p. 5
02

Whether the supporting affidavit filed outside the 28-day statutory period could sustain the petition

Holding

No; the affidavit was filed outside the constitutional and statutory timelines and could not be admitted, so the petition could not stand

Reasoning

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.

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Whether late deposit of security for costs without leave rendered the petition defective

Holding

Yes; security deposited 27 days after filing, without leave or explanation, was a substantive non-compliance requiring striking out

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Preliminary objections upheld and the petition struck out
  2. 2.Costs awarded to the respondents pursuant to section 78(3) of the Elections Act
  3. 3.A certificate of the determination to be issued to IEBC as required by law
  4. 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

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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, "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.