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MagistrateOtherNot stated in judgment· [2017] KEMC 29 (KLR)

Shiyenji Silas Muyeyia & another v Benson Manuni Mulinya & 2 others [2017] KEMC 29 (KLR)

Magistrates' Court (Election Petition)
1 December 2017
EME. Malesi
1,293 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This pre-trial ruling in a petition challenging the election of the Member of County Assembly for Idakho East Ward was delivered by E. Malesi, S.R.M on 1 December 2017. Two issues emerged from the pre-trial conference of 29/11/2017. First, whether the 1st Petitioner's Response to the 2nd Petitioner's Petition and a Further Affidavit sworn on 29/11/2017 were properly on record. The court held that Rule 12(9) of the Election Petitions Rules, 2017 requires leave before filing supplementary affidavits; none was sought. Despite the rules of natural justice supporting rebuttal of adverse allegations, the strict constitutional timelines in electoral dispute resolution counsels against permitting additional pleadings without leave, lest the process become a circus. Consolidation of the two petitions did not widen their scope or make the petitioners co-petitioners or adversaries. The Response and Further Affidavit were accordingly expunged and struck off, with no prejudice to the 1st Petitioner. Second, on scrutiny and recount, the court applied the Supreme Court's decision in Gatirau Peter Munya v Dickson Mwenda Kithinji, confirming that a request may be made at any stage after filing and before determination. However, the material before the court at pre-trial, submitted orally, was insufficient to identify polling stations for scrutiny. The court directed the 1st Petitioner to file a formal application for scrutiny and recount with submissions by 6/12/17, with respondents to respond by 11/12/2017. Costs were left to abide the outcome of the petition.

Key legal issues

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01

Whether pleadings filed without leave (Response and Further Affidavit) are properly on record

Holding

They are not properly on record and are expunged/struck off.

Reasoning

Rule 12(9) requires leave before filing supplementary affidavits; no leave was sought. Election dispute resolution operates under strict constitutional timelines, and allowing further pleadings without leave would open a floodgate of counter-responses. Consolidation did not make the petitioners co-petitioners or adversaries, and the 1st Petitioner suffers no prejudice since none of the 2nd Petitioner's framed issues could result in an adverse order against him.

p. 3
02

Whether scrutiny and recount can be ordered at this pre-trial stage

Holding

A request may be made at any stage after filing and before determination, but the 1st Petitioner must make a formal application; no order was made on the material before the court.

Reasoning

The Supreme Court in Gatirau Peter Munya established that scrutiny and recount may be requested at any stage after filing and before determination. However, the matter arose at pre-trial on oral submissions and the material placed before the court was insufficient to identify polling stations for scrutiny. The 1st Petitioner was directed to file a formal application with submissions, with respondents to respond.

Legal principles established

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  • A party to an election petition is entitled to make a request for a recount and/or scrutiny of votes at any stage after the filing of the petition and before the determination of the petition (per the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji).
  • Supplementary affidavits under Rule 12(9) of the Election Petitions Rules, 2017 require the prior leave of the court.

Court orders

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  1. 1.The Response by the 1st Petitioner to the Petition of the 2nd Petitioner is expunged and/or struck off the record.
  2. 2.The Further Affidavit sworn by the 1st Petitioner on 29/11/2017 is expunged and/or struck off the record.
  3. 3.The 1st Petitioner to make a formal application for scrutiny and recount, to be filed and served on or before 6/12/17, filed with submissions.
  4. 4.The respondents to file their responses and submissions on or before 11/12/2017.
  5. 5.Costs shall abide the outcome of the petition.
Jurisdiction invoked
Elections Act, Act No. 24 of 2011 and Elections (Parliamentary and County Elections) Petitions Rules, 2017 (election petition for Member of County Assembly)

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, "Shiyenji Silas Muyeyia & another v Benson Manuni Mulinya & 2 others [2017] KEMC 29 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/29/eng@2017-12-01

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