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MagistrateDismissedElection Petition concerning the County Assembly seat for Kitengela Ward (Notice of Motion dated 28th September 2017)· [2017] KEMC 24 (KLR)

Nixon Sunte Karaine v Paul Kipamet Matuya & 2 Others [2017] KEMC 24 (KLR)

Chief Magistrate's Court (Election Court)
23 October 2017
1,621 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 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

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Executive summary

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This is a ruling by S.M. Shitubi, CM, on a Notice of Motion dated 28th September 2017 by the 1st Respondent, Hon. Paul Kipamet Matuya, in an election petition concerning the County Assembly seat for Kitengela Ward. The application sought expungement of specified paragraphs of the Petition and of the Petitioner's supporting affidavit, and striking out of the witness affidavits of Moses Onsinyo Sepekwa, Robert Cheruiyot Ngetich and Samuel Hiuhu, on the grounds that the presiding officer and other election officers complained of were not enjoined individually as respondents, that liability of electoral officers is personal, and that the affidavits breached Rule 12 of the Elections (Parliamentary and County Elections) Petitions Rules 2017, Order 19 of the Civil Procedure Rules and section 16 of the Oaths and Statutory Declarations Act. The court framed five issues, including whether Article 159 of the Constitution could be overlooked. It held that election officers are employees of the IEBC acting in no personal capacity, so the IEBC, already a respondent, is the correct body to sue; that Rule 12(2) does not require the supporting affidavit to refer to witness affidavits; that the section 16 argument was unclear; and that nothing irrelevant, frivolous or scandalous appeared in the affidavits. Applying Article 159, sections 1A and 1B of the Civil Procedure Act and the reasoning in Steven Kariuki v George Mike Wanjohi, the court refused to penalise want of form and dismissed the application with costs, allowing the Petition to proceed to hearing.

Key legal issues

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01

Proper respondent for conduct of election officers

Holding

The Presiding Officer and other election officers need not be enjoined individually; the IEBC is the correct respondent

Reasoning

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.

p. 3
02

Defect in supporting affidavit for not referring to witness affidavits

Holding

Rule 12(2) does not require the supporting affidavit to refer to witness affidavits, so no striking out

Reasoning

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.

p. 3
03

Alleged breach of section 16 of the Oaths and Statutory Declarations Act

Holding

The complaint failed; the argument was unclear and the affidavits did not warrant striking out

Reasoning

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.

p. 3
04

Application of Article 159 and the overriding objective

Holding

Substantive justice prevails over want of form; the court declined to strike out the Petition's pleadings

Reasoning

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.

p. 3
05

Whether failure to file a substantive response amounted to concession

Holding

The Petitioner's preliminary point of objection was treated as a premature response, not a concession; the court determined the application on its merits

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The 1st Respondent's Notice of Motion dated 28th September 2017 is dismissed
  2. 2.Costs of the application are awarded to the Petitioner (dismissed with costs)
  3. 3.The Petition to proceed to hearing and determination

Authorities

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Legislation

  • Elections (Parliamentary and County Elections) Petitions Rules 2017Rules 2, 12, 12(2)(c) and (d)
  • Election (General) Regulations 2012Sections 3 and 5; definition of election officers
  • Oaths and Statutory Declarations Act (Cap 15)Sections 16 and 17
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 19
  • Constitution of Kenya 2010Articles 86(b), 86(c) and 159

Cases cited (3)

  • Maina Kiai case
  • Raila Amollo Odinga –vs- Uhuru Kenyatta and others [2017]
    [2017]
  • Steven Kariuki –vs- George Mike Wanjohi & 2 others
    [2013] eKLR
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

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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, "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.