Nixon Sunte Karaine v Paul Kipamet Matuya & 2 Others [2017] KEMC 24 (KLR)
The bottom line
#A Kenyan election court refused to strike out a Kitengela Ward petition on technical grounds, confirming that the IEBC—not individual polling officers—is the proper party to sue.
What this practically means
#Executive summary
#Key legal issues
#Proper respondent for conduct of election officers
The Presiding Officer and other election officers need not be enjoined individually; the IEBC is the correct respondent
The Election (General) Regulations 2012 define returning officers, presiding officers, clerks etc. as Election Officers appointed by the Commission. They perform no personal duties while presiding; liability falls on the IEBC, which is already the 3rd Respondent. Failure to join them individually is therefore not an incurable omission.
Defect in supporting affidavit for not referring to witness affidavits
Rule 12(2) does not require the supporting affidavit to refer to witness affidavits, so no striking out
The court examined Rule 12(2) of the Elections (Parliamentary and County Elections) Petitions Rules 2017 and found no requirement that the supporting affidavit refer to witness affidavits. The Petitioner's affidavits generally referred to issues in the Petition and contained nothing irrelevant, frivolous or scandalous.
Alleged breach of section 16 of the Oaths and Statutory Declarations Act
The complaint failed; the argument was unclear and the affidavits did not warrant striking out
The court found the argument on section 16 of Cap 15 unclear, noting that the section deals with affirmation. The witness affidavits referred to the issues raised in the Petition and nothing irrelevant, frivolous or scandalous was identified.
Application of Article 159 and the overriding objective
Substantive justice prevails over want of form; the court declined to strike out the Petition's pleadings
Guided by Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act, the court held it should not be overly concerned with want of form given the importance of the suit in determining who won the Kitengela Ward seat, and should move to resolve the real issues expeditiously.
Whether failure to file a substantive response amounted to concession
The Petitioner's preliminary point of objection was treated as a premature response, not a concession; the court determined the application on its merits
The court noted its earlier decision that the Petitioner's preliminary objection was premature but did not treat it as an admission. Having heard both sides' oral submissions, the court proceeded to decide the application on its merits and dismissed it.
Legal principles established
#- Election officers such as presiding officers are employees of the IEBC and do not act in a personal capacity, so the IEBC, not the individual officers, is the proper respondent to an election petition
- The court is enjoined to disregard technical failures and want of form and resolve the primary dispute between the parties
Court orders
#- 1.The 1st Respondent's Notice of Motion dated 28th September 2017 is dismissed
- 2.Costs of the application are awarded to the Petitioner (dismissed with costs)
- 3.The Petition to proceed to hearing and determination
- Jurisdiction invoked
- Election petition under the Elections (Parliamentary and County Elections) Petitions Rules 2017; Civil Procedure Act sections 1A and 1B; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nixon Sunte Karaine v Paul Kipamet Matuya & 2 Others [2017] KEMC 24 (KLR)", Case Analysis (2017). Election Petition concerning the County Assembly seat for Kitengela Ward (Notice of Motion dated 28th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/24/eng@2017-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.