P L A v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 30 (KLR)
The bottom line
#A Kenyan election court refused a petitioner's late bid to summon a presiding officer and admit a birth certificate because it should have been raised before the hearing began.
What this practically means
#Executive summary
#Key legal issues
#Res judicata on admissibility of the birth certificate
The court had not made a prior determination on admissibility, so the plea of res judicata failed
The court traced the history: leave was granted on 12/10/2017 to lay a basis for introducing the certificate via a rejoinder affidavit; the Petitioner never complied. When he attempted to produce it while testifying, the objection was upheld. In the court's view no substantive determination on admissibility had yet been made, so the doctrine of res judicata was not attracted.
Time bar under Rule 15(2) of the Election Petition Rules, 2017
The application was by its nature one that could have been brought before the commencement of hearing and is therefore barred
Although Rule 15(2) is not an absolute bar, the grounds in paragraph 3 of the petition already raised the alleged conflict of interest involving E S M. The Petitioner knew respondents would not call E S M and had been granted leave at pre-trial to lay a basis for the birth certificate but failed; both prayers could and should have been pursued before the hearing commenced.
Prejudice to the Petitioner
No prejudice would arise from disallowing the prayers
Evidence had already been adduced and closed; the court's task is to weigh that evidence. Introducing the birth certificate and summoning the Deputy Presiding Officer would deflect the election court into paternity questions irrelevant to an election petition for a ward of 9,147 registered voters.
Legal principles established
#- Rule 15(2) does not impose a blanket bar on interlocutory applications after pre-trial; it bars only applications which by their nature could have been brought before the hearing commenced
- A party who wishes to have a person compelled to attend and be examined must raise that at the pre-trial conference, particularly where the person's involvement is already pleaded in the petition
Court orders
#- 1.The Petitioner's application dated 18/11/2017 is dismissed
- 2.Costs shall abide the outcome of the petition
- Jurisdiction invoked
- Election court jurisdiction under the Elections (Parliamentary and County Elections) Petitions Rules, 2017 (county assembly election petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P L A v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 30 (KLR)", Case Analysis (2017). Election Petition No 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/30/eng@2017-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.