John Ogina Nyabola v Orange Democratic Movement Party & 2 others [2017] KEMC 31 (KLR)
The bottom line
#A Kenyan court struck out an election petition because the petitioner refused to pay a required deposit and serve the other side.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition, having been declared an election petition, must comply with the mandatory requirements of the Elections Act including deposit of security for costs
- 2.Whether failure and refusal to serve the 1st and 2nd respondents warranted striking out the petition
- 3.Whether the petitioner was interested in pursuing the petition
Key legal issues
#Mandatory deposit of security for costs
Section 78(1) and (2)(c) Elections Act is mandatory; the petitioner's failure and express refusal to deposit the Ksh.100,000 security was fatal to the petition
The petition was filed on 1/9/2017 and referred to the lower court as an election petition. Security of Ksh.100,000 was never deposited despite the court enlarging time. Counsel expressly stated the client would not comply because he maintained he had filed a constitutional petition. The court held the provision is mandatory and only time, not the obligation, may be enlarged.
Service of the petition on all respondents
Failure to serve the 1st and 2nd respondents, coupled with an express election not to serve, went to the root of the petition and justified striking out
Relying on Patrick Ngeta Kimanzi v Marcus Mutua Muluvi and Rozaah Akinyi Buy v IEBC, the court held service is an integral element of the right to a fair hearing and natural justice. A petition not served has no legal force. Mere knowledge does not cure want of service; it cannot be waived by Article 159(2)(d) or the overriding objective. Petitioner's selective service on the 3rd respondent only was not in good faith.
Character of the petition as an election petition
The issue whether the matter was an election petition was spent, having been declared so on 5/9/2017 by the Judge in the presence of counsel who never sought review
Counsel was present when the High Court recharacterised the petition and initially indicated he would seek review but never did. His refusal to comply with the Elections Act on the basis that this was a constitutional petition was held not to be in good faith, particularly given his selective service on the 3rd respondent only.
Legal principles established
#- Deposit of security for costs under section 78 of the Elections Act is mandatory; no election petition can proceed without it, though the court may enlarge time for payment
- Service of an election petition on respondents is a mandatory requirement; failure to serve goes to the root of the petition
Court orders
#- 1.The petition is struck out
- 2.Costs of the petition to the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Referred from the High Court on 5/9/2017 as an election petition to be heard and determined before a designated magistrate under the Election Act 2011; sections 76(1)(a) and 78(1) and (2)(c) Elections Act 2011
Relief refused
#Stay of swearing-in of nominated members / prosecution of the petition
Petitioner failed to deposit security, refused to serve the 1st and 2nd respondents, and did not comply with court orders, demonstrating lack of interest in pursuing the petition
Costs
Costs to the 3rd respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
No election petition can proceed without deposit of security for costs. Court can only enlarge time within which the same is to be paid but the bottom line is the same MUST be deposited for hearing to proceed.
Service of the petition is a mandatory requirement and a petition that has not been served cannot proceed for hearing as the respondent is denied the opportunity to contest the facts in the petition.
In view of the foregoing, the petitioner is clearly not interested in pursuing the petition. I thus strike out the petition with costs to the 3rd respondent.
Issues in the judgment
#The case number and the parties' actual names are not stated anywhere in the judgment, which refers to the parties only by role
Internal inconsistency in the filing date: petition described as filed 4/9/2017 at the outset but later stated as filed 1/9/2017
Security deposit requirement is listed twice under non-compliances as at the final mention
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Ogina Nyabola v Orange Democratic Movement Party & 2 others [2017] KEMC 31 (KLR)", Case Analysis (2017). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/31/eng@2017-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.