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MagistrateStruck OutElection Petition No. 1 of 2017 (Kericho)

Amos Kimutai Birir v Hillary Kipyegon Bett & 2 others [2017] KEMC 14 (KLR)

Chief Magistrate's Court, Kericho (Election Court)
30 November 2017
SMS. M. Mokua
1,920 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 the losing candidate never served it on respondents in time or paid the required Kshs. 100,000 security for costs.

What this practically means

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Executive summary

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The petitioner, a defeated County Assembly candidate for Kapkatet Ward in Kericho County following the 8/8/2017 elections, petitioned for a recount, scrutiny and verification of votes and declarations that the 1st respondent was not validly elected and that he himself be declared elected, alleging irregularities and malpractices. The respondents applied, under Rules 8, 10, 12 and 13 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 and Sections 77 and 78 of the Elections Act, to strike out the petition on two grounds: failure to serve the petition within the seven days prescribed by Rule 10, and failure to deposit security for costs of Kshs. 100,000/= within ten days of filing as required by Rule 13 and Section 78(2)(c). The petition, filed on 23/8/2017, was served on the 1st respondent on 6/9/2017, outside the statutory period, and the 2nd and 3rd respondents were never served by the petitioner. The petitioner also made no attempt to deposit security for costs. Relying on Patrick Ngeta Kimanzi v Marcus Mutua Muluvi on the mandatory nature of service and on Fatuma Zainabu Mohamed v Ghati Dennitali on security for costs as a jurisdictional requirement, the court held that the petitioner had failed to meet fundamental statutory preconditions and that the court's jurisdiction to hear the petition was ousted. The petition dated 22/8/2017 was struck out with costs to the respondents, capped at Kshs. 160,000/=, to be assessed for sharing between the two respondents' law firms.

Key legal issues

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01

Want of service of the petition

Holding

Service of an election petition is mandatory and failure to serve within 7 days of filing justifies striking out

Reasoning

Rule 10(1) requires service within seven days of filing by direct service or newspaper advertisement. The petition was filed on 23/8/2017 but served on the 1st respondent on 6/9/2017, beyond the stipulated period, and the 2nd and 3rd respondents were never served. The court relied on authority establishing that service underpins the right to a fair hearing and cannot be excused under Article 159(2)(d).

p. 3
02

Failure to deposit security for costs

Holding

Failure to deposit Kshs. 100,000/= within 10 days of filing, as required by Rule 13 and Section 78(2)(c) of the Elections Act, is a substantive requirement that ousts the court's jurisdiction

Reasoning

Rule 13 requires deposit of security within 10 days of filing, Kshs. 100,000/= in the case of a petition against a member of a County Assembly. The petitioner never endeavoured to deposit the sum. Relying on Muriithi J.'s holding in Fatuma Zainabu Mohamed, security for costs goes to the root of jurisdiction, and non-compliance prohibits further proceedings.

p. 4

Legal principles established

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  • Service of an election petition is a mandatory requirement; a petition not served cannot proceed to hearing, and mere knowledge of it does not cure want of service
  • Failure to deposit the statutory security for costs within the prescribed time ousts the court's jurisdiction to hear the petition

Court orders

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  1. 1.The petition dated 22/8/2017 struck out
  2. 2.Costs awarded to the respondents, capped at Kshs. 160,000/=, to be assessed for sharing between the two law firms for the respondents
Jurisdiction invoked
Elections Act, Sections 77 and 78; Elections (Parliamentary and County Elections) Petitions Rules, 2017, Rules 8, 10, 12, 13

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, "Amos Kimutai Birir v Hillary Kipyegon Bett & 2 others [2017] KEMC 14 (KLR)", Case Analysis (2017). Election Petition No. 1 of 2017 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/14/eng@2017-11-30

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