Kazungu Wanje Baya v Independent Electoral and Boundaries Commission (I.E.B.C) & 2 others [2017] KEMC 44 (KLR)
The bottom line
#A Malindi court struck out an election petition for being filed one day late, missing the mandatory security deposit, and skipping required content.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was filed out of time
The petition was filed one day after the lapse of the statutory 28-day period, rendering it incurably defective
The 3rd Respondent was declared elected on 10 August 2017. Under section 76(1)(a) of the Elections Act and Article 87(2) of the Constitution, election petitions other than presidential petitions must be filed within 28 days of declaration of results. The petition dated 5/9/2017 was filed after the lapse of the 28-day period, and this was not challenged by the Petitioner. Non-compliance with constitutional timelines is fatal and cannot be cured.
Whether failure to deposit security for costs warranted striking out the petition
No deposit of security for costs was made, and under section 78(3) no further proceedings could be heard on the petition
Section 78(1) and (2)(c) required the petitioner to deposit Ksh. 100,000/= as security within ten days of presentation. From the court records no deposit was made, nor did the petitioner seek extension of time. Following FATUMA ZAINABU MOHAMED –VS- GHATI DENNITAH & 9 OTHERS, security for costs is a substantive requirement underpinning the court's jurisdiction, and section 78(3) bars the hearing of the petition.
Whether the petition complied with Rule 8(1) of the Election Petition Rules, 2017
Rule 8(1)(a), (c) and (d) were not complied with, making the petition incurably defective
Rule 8(1) requires a petition to state the petitioner's name and address, the results of the election as declared and the date of declaration. On examination of the petition dated 5/9/2017 the court found these mandatory requirements unmet. Since the constitutional 28-day filing period had lapsed, no amendment was possible; Article 159(2)(d) and Article 48 could not cure the defect.
Legal principles established
#- A petition challenging the validity of election of a member of a County Assembly must be filed within 28 days of the declaration of results, and failure to comply makes the petition incurably defective
- Failure to deposit security for costs under section 78(3) of the Elections Act bars further proceedings on the petition
- Failure to comply with Rule 8(1) makes a petition incurably defective where constitutional timelines have lapsed, as no amendment is possible
Court orders
#- 1.The Petitioner's petition dated 5/9/2017 and filed in court on 9/9/2017 is struck out with costs to the 3rd Respondent
- 2.Costs to the 3rd Respondent capped at an all-inclusive sum of Ksh. 450,000/= to be paid by the Petitioner
- 3.The Petitioner's petition dated 5/9/2017 and filed on 9/9/2017 is found incurably defective and struck out with costs to the 1st and 2nd Respondents
- 4.Costs to the 1st and 2nd Respondents capped at an all-inclusive sum of Ksh. 480,000/= to be paid by the Petitioner
- Jurisdiction invoked
- Section 76(1)(a) and 78 of the Elections Act, 2011; Article 87(2) of the Constitution, 2010; Elections (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kazungu Wanje Baya v Independent Electoral and Boundaries Commission (I.E.B.C) & 2 others [2017] KEMC 44 (KLR)", Case Analysis (2017). Election Petition No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/44/eng@2017-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.