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MagistrateStruck OutElection Petition dated 22/9/2017· [2017] KEMC 39 (KLR)

Abdia Mohamed Oshow v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 39 (KLR)

Magistrates' Court (Election Court)
19 December 2017
BOB. Ombewa
2,333 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an election petition filed seven days late, confirming that the 28-day filing deadline is absolute and cannot be extended.

What this practically means

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Executive summary

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The Petitioner, Abdia Mohammed Oshow, filed an election petition dated 22/9/2017 and filed in court on 2/10/2017 challenging the nomination of the 3rd and 4th Respondents as members of the Mandera County Assembly Gender Top Up, gazetted on 28/8/2017 via Gazette Notice No. 8380. She sought declarations that the nominations were invalid, nullification of the gazettement, her own substitution as the validly nominated member, and in the alternative a fresh party-list submission, plus costs. The 1st Respondent raised a preliminary objection that the petition was filed outside the mandatory 28 days under Article 87(2) of the Constitution and section 76(1)(a) of the Elections Act, robbing the court of jurisdiction; the 2nd to 4th Respondents raised a joint objection on the same ground, abandoning their ground concerning party nomination disputes. The Petitioner opposed, arguing that nominations are not elections and that no declaration of results triggered the 28-day period, and invoking Article 105. The court, applying Mukisa Biscuit, held the objections were proper points of law. It held that there are two modes of election - universal suffrage and nomination - and relying on Supreme Court authority (Mwicigi, Lisamula, Lemanken Aramat) found that the Gazette Notice completes the election by nomination and starts the mandatory, non-extendable 28-day timeline. Article 105 confers no jurisdiction on the election court. The petition, filed about 35 days after gazettement, was incompetent and fatally defective. The court allowed the preliminary objection, struck out the petition, and awarded costs to each Respondent capped at shs 250,000/=.

Key legal issues

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01

Whether the preliminary objections were properly raised

Holding

The objections were proper as they raised pure points of law capable of disposing of the petition

Reasoning

Applying the Mukisa Biscuit test, the court found the objections premised on pure points of law (statutory and constitutional time limits) which, if allowed, would dispose of the petition without need for factual inquiry.

p. 4
02

Whether the Petition was filed outside the constitutional and statutory timelines

Holding

Yes; the petition was filed about 35 days after the Gazette Notice of 28/8/2017, outside the 28-day period, rendering it incompetent and fatally defective

Reasoning

Nomination is a mode of election; the Gazette Notice signifies completion of the election by nomination and starts the 28-day clock under Article 87(2) and section 76(1)(a). The timelines are mandatory and cannot be extended under Rule 19(2), so the court lacked jurisdiction.

p. 4

Legal principles established

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  • Election petition filing timelines under Article 87(2) of the Constitution and section 76(1)(a) of the Elections Act are mandatory, inflexible and inextensible; a petition filed outside them is a nullity
  • Publication of the Gazette Notice marks the completion of an election by nomination and starts the timeline for filing an election petition
  • Rule 19 of the Elections (Parliamentary and County Elections) Petition Rules 2017 does not permit extension of the period for filing a petition

Court orders

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  1. 1.The preliminary objections are allowed
  2. 2.The Election Petition is struck out with costs to the Respondents
  3. 3.Costs for each of the Respondents capped at shs 250,000/=

Authorities

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Legislation

  • Constitution of KenyaArticle 87(2)
  • Constitution of KenyaArticle 90
  • Constitution of KenyaArticle 105
  • Elections ActSection 76(1)(a)
  • Elections ActSection 75(1A)
  • Elections ActSection 36(1)(a) (as cited by respondents)
  • Political Parties Act (Cap 78)Sections 39, 40 and 41 (as cited by respondents)
  • Elections (Parliamentary and County Elections) Petitions Rules 2017Rule 19(1) and (2)
  • Elections (Party Primaries and Party lists) Regulations, 2017Section 27 (as cited by respondents)
  • Election (Parliamentary and County Assembly) RegulationsRegulation 73 (as cited by petitioner)

Cases cited (5)

  • Mukisa Biscuit Manufacturing Ltd v West End Distributors Ltd
    (1969) E.A 696
  • Moses Mwicigi and 14 Others v Independent Electoral and Boundaries Commission and 5 Others
    (2016) eKLR
  • Anami Silverse Lisamula v Independent Electoral and Boundaries Commission and 3 Others
    (2014) eKLR
  • Lemanken Aramat v Harun Meitamei Lempaka & 2 Others
    Supreme Court Petition No. 5 of 2014
  • Orie Rogo Manduli vs Catherine Mwangola & Others
    [2013] eKLR
Jurisdiction invoked
Section 75(1A) of the Elections Act (election petitions concerning County Assembly elections heard by the magistrates' court)

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, "Abdia Mohamed Oshow v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 39 (KLR)", Case Analysis (2017). Election Petition dated 22/9/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/39/eng@2017-12-19

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