Aramisi Makokha Nakhone v Mukhwana Laban Wanzala & 2 others [2017] KEMC 15 (KLR)
The bottom line
#A Kenyan election petition was thrown out because the petitioner never paid the required Kshs.100,000 security deposit and tried to withdraw the case verbally, which the law does not allow.
What this practically means
#Executive summary
#Key legal issues
#Withdrawal of an election petition
The petitioner may not withdraw the petition without leave of the court and strict compliance with Rules 21-24 of the 2017 Petitions Rules (Form 5 application, signed notice, grounds, registry lodgement and newspaper publication); the verbal request was invalid.
The court examined Rules 21 to 24 which require a formal application in Form 5, signed by the petitioner or authorised person, stating grounds, lodged at the registry, with notice published in a newspaper of national circulation. The perusal of the record revealed multiple areas of non-compliance: no application, no signed notice, no grounds, no lodgement. Following Moses Saisi v IEBC, the verbal request by counsel was not a valid withdrawal, leaving the dismissal applications to be determined on section 78.
Deposit of security for costs under section 78 of the Elections Act, 2011
The petitioner was required to deposit Kshs.100,000 by 21st September 2017; failure to deposit security is a substantive requirement going to the root of the petition and the petition is dismissed under section 78(3).
Section 78(2)(c) and Rule 13(1) required a Kshs.100,000 deposit within ten days of presentation. The court noted the school of thought, epitomised by Esposito Franco v Kingi, that non-depayment deprives the court of jurisdiction and that there is no power to extend time, and that Rule 19(10) extension powers could not assist because no extension application was ever made. Relying on K. Naomi Cidi, Patrick Ngeta Kimanzi and Evans Nyambaso, the court held the petitioner's non-compliance warranted dismissal and costs to the respondents.
Legal principles established
#- Failure to deposit security for costs within the prescribed ten days is not a mere irregularity and warrants dismissal of the petition under section 78(3) of the Elections Act
- An election petition cannot be withdrawn verbally or without leave of the court and compliance with the prescribed procedure
Court orders
#- 1.The election petition is dismissed for want of security for costs
- 2.The petitioner to pay the costs of the 1st, 2nd and 3rd respondents, to be determined in accordance with the law governing election petitions
- Jurisdiction invoked
- Elections Act, 2011, section 78; Election Court jurisdiction over county assembly election petitions (Article 87 Elections Act framework / Elections (Parliamentary and County Elections) Petitions Rules, 2017)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aramisi Makokha Nakhone v Mukhwana Laban Wanzala & 2 others [2017] KEMC 15 (KLR)", Case Analysis (2017). Busia Election Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/15/eng@2017-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.