Erick Ouma Opany v Independent Electoral & Bounderies Commission (IEBC) & another [2017] KEMC 42 (KLR)
The bottom line
#A Migori election petition was struck out because the petitioner never paid the required Kshs 100,000 security for costs, and no good excuse justified the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether deposit of security for costs is technical or substantive
It is substantive and goes to the root of the proceedings; non-payment deprives the court of jurisdiction.
Following the Court of Appeal in Rotich Samuel Kimutai and High Court decisions including Milton Kimani Waitinga and Fatuma Zainabu Mohamed, the court held that the peremptory language of section 78 of the Elections Act, and the consequences of non-compliance in section 78(3), show Parliament intended non-deposit to be fatal, keeping frivolous litigants out of court and protecting respondents from unrecoverable costs.
Whether the election court can extend time for deposit of security
Yes, the court has jurisdiction under Rule 19 of the Election Petition Rules to extend time when properly moved, but the discretion must be exercised judicially for good cause shown.
The court surveyed conflicting 2013 and 2017 authorities, adopting the liberal 2017 approach (Tom Onyango Agimba, Samwel Kazungu Kambi, Yaite, Fatuma Zainabu) that Rule 19 subjects the 10-day period to extension, while noting sufficient cause must be shown. However, on the facts, the petitioner failed to demonstrate sufficient cause.
Whether the petitioner showed sufficient cause for extension of time
No; the reasons given (humble background, delay beyond his control) were unelaborated, unsupported by evidence of financial status, and no deposit or cheque was exhibited.
The petitioner gave no specific reasons beyond vague assertions; his means were not disclosed; over two months had elapsed with the petition counsel on record throughout; unlike the distinguishable authorities where deposits had been made before the applications were heard, here not even part of the deposit had been paid. The burden of proof lay on the petitioner and was not discharged.
Legal principles established
#- Deposit of security for costs in an election petition is a substantive requirement going to the root of the court's jurisdiction, not a technical or procedural requirement.
- An election court can enlarge time within which to deposit security for costs when properly moved and with sufficient cause.
- Article 159(2)(d) of the Constitution is not a panacea for indolence and lack of due diligence by litigants.
Court orders
#- 1.The petition herein is hereby struck out
- 2.The 2nd respondent is hereby awarded costs for the petitioner's application dated 9/11/2017
- 3.The 2nd respondent is warded costs for her application dated 29/11/2017
- 4.The costs for the petition awarded to both the respondents
- 5.A certificate of this determination in accordance with section 86(1) of the Election Act shall issue to the Independent Boundaries and Electoral Commission and the Speaker of the County Assembly of Migori County
- Jurisdiction invoked
- Section 78 of the Elections Act, No. 24 of 2011 and Rule 13 of the Elections (Parliamentary and County) Elections Regulations, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erick Ouma Opany v Independent Electoral & Bounderies Commission (IEBC) & another [2017] KEMC 42 (KLR)", Case Analysis (2017). Migori Election Petition No. 5 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/42/eng@2017-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.