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MagistrateDismissedElection Petition Case No. 1 of 2017· [2017] KEMC 25 (KLR)

Nixon Sunte Karaine v Paul Kipamet Matuyia & 2 others [2017] KEMC 25 (KLR)

Chief Magistrates Court at Kajiado
16 November 2017
585 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court rejected a late request to scrutinise election forms, confirming that scrutiny must be sought at the pre-trial conference, not afterwards.

What this practically means

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Executive summary

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In this election petition before the Chief Magistrates Court at Kajiado, the parties appeared at the close of the petitioner's case and the respondents' cases for highlighting of submissions. Counsel Muaka, for the petitioner (holding brief for counsel for the 2nd and 3rd Respondents but expressly without instructions on the point), orally applied for the court to be guided by the Deputy Registrar's Report on original Forms 36A and 35B, which should be availed, and for SD cards to be examined by IT experts from both parties with a report to court, relying on Rules 18, 21 and 37 of the Elections (Parliamentary and County Elections) Petitions Rules. Mr Nyantika for the 1st Respondent opposed, contending it was too late and leave had not been sought. The court, per S. M. Shitubi CM, held that Part V of the Rules on case management requires a mandatory pre-trial conference under Rule 15, and Rule 15(2) bars interlocutory applications after the pre-trial conference where the application could by its nature have been raised before the hearing. Scrutiny of documents and IT examination of SD cards ought to have been canvassed at pre-trial and agreed as issues for determination. Allowing the application would entail going back to issue-framing after evidence had been taken, and it was brought in the absence of the 2nd and 3rd Respondents who would be most affected. The court found the application was an oral, late application aimed at delaying the petition, interfered with case management, and rejected it. The petition was to proceed as planned.

Key legal issues

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01

Timeliness of interlocutory applications in election petitions under Rule 15(2)

Holding

The application for scrutiny, having been made at the close of the parties' cases and without leave, is out of time and improper

Reasoning

Rule 15(2) prohibits interlocutory applications after the pre-trial conference where the application could by its nature have been raised before the hearing. Scrutiny of Forms 36A and 35B and examination of SD cards should have been raised at pre-trial so they could form issues for determination. Allowing the application now would reopen issue-framing after evidence had been taken, disrupting case management.

p. 2
02

Form and manner of the application

Holding

The application could not be made orally at that stage, particularly as it affected absent 2nd and 3rd Respondents

Reasoning

The application was made orally without leave of the court, while counsel for the petitioner admitted he lacked instructions to represent the 2nd and 3rd Respondents on the issue. Since those respondents would be most affected, proceeding in their absence would be improper. The court viewed the application as an interference with planned case management and a delay tactic.

p. 2

Legal principles established

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  • An election court shall not allow an interlocutory application after the pre-trial conference if it could by its nature have been broached before commencement of the hearing
  • Scrutiny of election documents should be sought and agreed as an issue at the pre-trial stage, not after parties have adduced evidence

Court orders

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  1. 1.The 1st Respondent's/petitioner's oral application for scrutiny of election materials is rejected
  2. 2.The petition to proceed to hearing and determination as earlier planned

Authorities

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Legislation

  • Elections (Parliamentary and County Elections) Petitions RulesRule 15(2); Rules 18, 21, 37; Part V
Jurisdiction invoked
Elections (Parliamentary and County Elections) Petitions Rules, 2017

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 Matuyia & 2 others [2017] KEMC 25 (KLR)", Case Analysis (2017). Election Petition Case No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/25/eng@2017-11-16

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