Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateDismissedElection Petition No 10 of 2017· [2017] KEMC 30 (KLR)

P L A v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 30 (KLR)

Magistrates' Court (sitting as an Election Court)
1 December 2017
1,795 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
This is a ruling delivered by S.R.M E. Malesi in an election petition challenging the election of the 3rd Respondent as Member of County Assembly for a ward whose particulars are withheld. After all parties had closed their cases, the Petitioner applied on 18/11/2017 for (a) summons to examine and cross-examine E S M, a Deputy Presiding Officer, regarding the birth certificate of a child A A C whose paternity was said to link her to the 3rd Respondent, and in the alternative (b) admission of the official birth certificate in evidence. The Petitioner argued the certificate was an uncontested public document and that spouse privilege prevented him calling E S M. All respondents opposed, contending the application was an interlocutory application barred by Rule 15(2) of the Election Petition Rules, 2017, that the admissibility issue was res judicata, and that no basis had been laid. The court framed three issues: res judicata, the Rule 15(2) time bar, and prejudice. It held there had been no prior determination of admissibility (leave had been granted on 12/10/2017 to lay a basis but the Petitioner never complied), that the application was by its nature one that should have been brought before the hearing commenced, and that no prejudice would arise since the evidence was closed and the court would not conduct a paternity inquiry. The application was dismissed with costs to abide the outcome of the petition.

Key legal issues

#
01

Res judicata on admissibility of the birth certificate

Holding

The court had not made a prior determination on admissibility, so the plea of res judicata failed

Reasoning

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.

p. 3
02

Time bar under Rule 15(2) of the Election Petition Rules, 2017

Holding

The application was by its nature one that could have been brought before the commencement of hearing and is therefore barred

Reasoning

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.

p. 4
03

Prejudice to the Petitioner

Holding

No prejudice would arise from disallowing the prayers

Reasoning

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.

p. 4

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. 1.The Petitioner's application dated 18/11/2017 is dismissed
  2. 2.Costs shall abide the outcome of the petition

Authorities

#

Legislation

  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rule 15(2); Rule 4

Cases cited (1)

  • Mohamed Ali Mursal v Saadia Mohamed & 2 Others
    [2013] eKLR
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.