Abdiwahab Sheikh Osman Hathe v Mohamed Ali Sheikh & 3 others [2017] KEMC 41 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether time for filing responses to an election petition can be extended
Yes - Rule 19(1) donates discretion to extend time even after expiry, and Article 159(2)(d) requires justice without undue regard to technicalities
Rule 11(1) requires responses within 7 days of service, but Rule 19(1) expressly permits the election court to extend or limit prescribed time to avoid injustice. The respondents explained difficulties obtaining materials from the IEBC, the delay was not inordinate, responses were already served on the petitioner, and refusal would have drastic consequences of condemning them unheard.
Whether an election petition may be amended after the 28-day period
Only to correct inadvertent errors and omissions apparent on the face of the petition; substantive amendments introducing new evidence are time-barred
Section 76(4) of the Elections Act permits amendment only within the 28 days prescribed for challenging an election. The application was filed over a month late. The draft amended petition introduced new documents and averments changing the petition's character, which the court has no jurisdiction to allow after 28 days; only the correction of 'member of parliament' to 'Member of County Assembly' in paragraph 15 was permitted.
Whether new expert evidence by further affidavit could be admitted
No - the application was out of time, the report was not ready, and admission would prejudice the respondents and derail expeditious disposal
Rule 15(1)(h) allows further affidavits, but new evidence that would amend the petition must be sought within 28 days of declaration. The expert was instructed on 27/9/2017, long after filing, and the report was not ready; respondents would need commensurate expert time, delaying a petition with barely two months left. The evidence was an afterthought.
Competency of an advocate's supporting affidavit on contested facts
The affidavit was incompetent and struck out, defeating the application it supported
Following Nicholas Kipchichir Kimaiyo v Wilson Kibet Kimutai, an advocate cannot swear affidavits on contested matters of fact about which he has no first-hand knowledge. The application for expert examination of the polling station diary was supported solely by the incompetent affidavit, so it could not stand and was dismissed with costs.
Access to KIEMs kit and fixing additional seals
Both allowed - seals secure the ballot box pending scrutiny, and access to the KIEMs kit engages the petitioner's right to information without prejudice
The petition already sought scrutiny and recount of ballots at Kumahumato polling station 01, so affixing additional seals was reasonable to secure the ballot box. Access to the KIEMs kit would cause no prejudice to the respondents and advances the petitioner's right to information.
Legal principles established
#- An election court has discretion under Rule 19(1) of the Elections (Parliamentary and County Elections) Petition Rules 2017 to extend or limit time prescribed by the Rules even after expiry, to ensure injustice is not done to any party
- After the lapse of the 28-day period from declaration of results, an election court cannot permit amendments or further evidence that change the nature and character of the petition; only inadvertent errors apparent on the face of the petition may be corrected
- An advocate appearing in a matter cannot swear a supporting affidavit on contested facts about which he cannot give first-hand answers
Court orders
#- 1.Leave granted to the 1st, 2nd, 3rd and 4th respondents to file their responses to the petition out of time, and the responses already filed and served admitted
- 2.Costs of the two applications for extension of time in the cause
- 3.Leave granted to amend paragraph 15 of the petition to correct 'member of parliament' to 'Member of County Assembly'; the wider prayer to amend the petition declined
- 4.Prayer for leave to file the further affidavit of Moses Odhiambo (expert evidence) declined
- 5.Ballot box for the Member of County Assembly votes, Kumahumato polling station 01 to be availed in court for affixing additional seals
- 6.Petitioner granted access to the KIEMs kit used at Kumahumato polling station 01
- 7.Prayer that Safaricom Limited produce text messages declined
- 8.Costs of the Notice of Motion dated 13th October, 2017 in the cause
- 9.Supporting affidavit of Paul Mugwe Nyaga struck out and the Notice of Motion dated 30th October, 2017 dismissed with costs to the respondents
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; Elections (Parliamentary and County Elections) Petition Rules 2017, Rules 5, 11(1) and 19(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdiwahab Sheikh Osman Hathe v Mohamed Ali Sheikh & 3 others [2017] KEMC 41 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/41/eng@2017-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.