Muktar Bishar Sheikh v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 45 (KLR)
The bottom line
#A Kenyan court struck out an election petition because its supporting affidavit was never commissioned before a commissioner for oaths, making the entire petition incompetent.
What this practically means
#Executive summary
#Key legal issues
#Validity of the supporting affidavit
The purported supporting affidavit was not commissioned and is therefore not an affidavit in law; it is incompetent and was struck out.
Black's Law Dictionary defines an affidavit as a voluntary declaration of facts written down and sworn to before an officer authorised to administer oaths. The petitioner's supporting affidavit was not commissioned before a commissioner for oaths, breaching sections 4, 5 and 6 of the Oaths and Statutory Declarations Act and Order 19 of the Civil Procedure Rules. Relying on superior court decisions, the court held rule 8(4)(b) to be a mandatory requirement going to the root of the petition.
Status of annexed witness affidavits
The witness affidavits annexed as MBS-4 and MBS-5 are mere exhibits, not independent affidavits under rule 12, and were struck out.
Rules 12(3) and (4) require each proposed witness to swear and file an independent affidavit. Affidavits annexed to the petitioner's supporting affidavit constitute only the petitioner's evidence and cannot be cross-examined upon. Following the Supreme Court's decision in Odinga v IEBC, such annexures were expunged, leaving the petition without witnesses.
Whether defects can be cured under Article 159
The defects are fundamental breaches of substantive and procedural law not curable under Article 159 or excusable under the court's discretion.
The court found the breaches of the mandatory rules 8 and 12 go to the root of the petition. Article 159's overriding objective cannot be used to abrogate express statutory provisions. Without the supporting affidavit and witness affidavits, what remained of the petition was a shell that could not stand and was accordingly struck out.
Legal principles established
#- An affidavit must be voluntary, written and commissioned before an officer authorised to administer oaths; if any ingredient is missing the document is not an affidavit in law.
- The requirement of rule 8(4)(b) that an election petition be supported by an affidavit sworn by the petitioner is mandatory and cannot be excused under Article 159.
- Affidavits annexed to the petitioner's supporting affidavit are not independent witness affidavits and cannot form the basis of witnesses' evidence.
Court orders
#- 1.The unsworn statement filed by the petitioner allegedly as a supporting affidavit is struck out and expunged from the court record
- 2.The affidavits of the proposed witnesses annexed to the incompetent supporting affidavit of the petitioner are struck out and expunged from the court record
- 3.The application by the 3rd Respondent dated 9th November 2017 is allowed
- 4.The petition is struck out as an incompetent shell
- 5.The applicant will bear his own costs of the application dated 9th November 2017
- 6.The petitioner shall bear the costs incurred by all the Respondents in defending the petition
- Jurisdiction invoked
- Elections Act 2011 and the Elections (Parliamentary & County) Petitions Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- National Land Commission v Wambugu (Miscellaneous Civil Application 2B of 2024) [2026] KEELC 3024 (KLR)[2026] KEELC 3024 (KLR)14 May 2026applied
Cite this brief
#Cite this brief
Caselaw, "Muktar Bishar Sheikh v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 45 (KLR)", Case Analysis (2017). Election Petition (Mandera West Constituency), Lagsure Ward, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/45/eng@2017-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.