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MagistrateOtherElection Petition dated 6th September 2017 (number not stated)· [2017] KEMC 12 (KLR)

Gerald Iha Thoya v Chiriba Daniel Chai & another [2017] KEMC 12 (KLR)

Chief Magistrate's Court (Election Court)
20 December 2017
SWS.R. Wewa
1,656 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 court struck out a petition because an amended petition without fresh supporting affidavits is fatally defective and cannot be saved by Article 159(2)(d).

What this practically means

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Executive summary

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This first-instance election court decision, delivered on 20 December 2017 by Hon. S.R. Wewa, PM, concerned cross-applications in an election petition filed on 6 September 2017 and amended by consent on 18 September 2017. The petitioner sought an order for scrutiny and recount and a declaration that all respondents committed election irregularities. The 1st and 2nd Respondents applied to strike out the petition on grounds that it offended Article 87(2) of the Constitution and Rules 8 and 12 of the Elections (Parliamentary and County Elections) Petition Rules 2017 by failing to state the election results and by lacking supporting affidavits after amendment. The court reiterated that pleadings are struck out only in clear cases, but held that the Rule 8 content requirements for election petitions are substantive, not merely technical. Relying on Lumbashue Reuben Moriaso Ole vs Kodi Julius Ole, it held that an amendment extinguishes the original pleading, so the amended petition required fresh supporting affidavits from the petitioner and witnesses. Their absence was a fatal defect that Article 159(2)(d) could not cure; allowing the deviation would leave the court with a 'bicephalous' petition unknown to election law. The court allowed the 1st and 2nd Respondents' applications, struck out the petition, and awarded costs capped at Ksh. 500,000 for each Respondent (Ksh. 1.5 million total). The petitioner's scrutiny and recount application was overtaken by events. Leave to appeal was granted and certified copies of proceedings and the Ruling were ordered supplied on payment.

Key legal issues

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01

Law on striking out pleadings

Holding

Pleadings should only be struck out in clear cases; the court looks at substance rather than form

Reasoning

The court restated the general principle that striking out is a drastic remedy reserved for clear cases with incurable defects, then turned to the specific mandatory requirements applicable to election petitions under the Elections Act and the applicable Rules.

p. 2
02

Effect of failure to file affidavits in support of an amended election petition

Holding

Omission to file an affidavit in support of the amended petition is a fatal, incurable defect warranting striking out

Reasoning

Because the amendment was by consent it extinguished the original petition, which had supporting affidavits. The amended petition lacked fresh supporting affidavits from the petitioner and witnesses. Courts do not permit amendments to cure fatal defects, so Article 159(2)(d) could not save the petition.

p. 4
03

Invocation of Article 159(2)(d) to excuse non-compliance

Holding

The constitutional overriding objective cannot salvage a petition that fails mandatory substantive requirements

Reasoning

While election courts have discretion under Article 159(2)(d) to excuse minor or trivial deviations, the defects here were not trivial: the amended petition lacked the supporting affidavits which are deemed part of the pleadings, and excusing it would produce a 'bicephalous' petition unknown to election law.

p. 3

Legal principles established

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  • An amended pleading extinguishes the original pleading, and an amended election petition must be supported by fresh affidavits of the petitioner and witnesses
  • The content requirements of Rule 8 of the Election Petition Rules are substantive, not mere technicalities

Court orders

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  1. 1.The petition struck out
  2. 2.Costs awarded to the Respondents, capped at Ksh. 500,000 for each of the Respondents (total Ksh. 1,500,000)
  3. 3.The Petitioner's application for scrutiny and recount rendered moot (overtaken by events)
  4. 4.Leave to appeal against the Ruling granted
  5. 5.Certified copies of proceedings and Ruling to be supplied on payment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 87(2); Article 159(2)(d)
  • Elections Act, 2011general mandatory requirements
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 8(1)(c) and (d); Rule 8(4)(b); Rule 12(2)(c) and (d)
  • Supreme Court (Presidential Election Petition) Rules, 2017Rule 7 and First Schedule

Cases cited (5)

  • Ismail Suleiman and 9 others vs Returning Officer Isiolo County and 2 others
    Election Petition (Meru) No. 2 of 2013
  • Amina Hassan Ahmed vs Returning Officer Mandera County and 2 others
    Election Petition (Nairobi) No. 4 of 2013
  • M'N Kina Petkery Shen Mint vs Regina Samwel Mbae and 2 others
    Election Petition Meru No. 4 of 2013
  • Lumbashue Reuben Moriaso Ole vs Kodi Julius Ole and 3 others
    Narok Election Petition 1 of 2013
  • Gatirau Peter Munya vs Dickson Githinji and 2 others
    Supreme Court Petition No. 2b of 2014
Jurisdiction invoked
Elections Act 2011 and Elections (Parliamentary and County Elections) Petition Rules 2017; Constitution Article 159(2)(d)

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, "Gerald Iha Thoya v Chiriba Daniel Chai & another [2017] KEMC 12 (KLR)", Case Analysis (2017). Election Petition dated 6th September 2017 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/12/eng@2017-12-20

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