Alfred Mdeizi v Independent Electoral & Bounderies Commission ( IEBC) & another [2017] KEMC 50 (KLR)
The bottom line
#A Kenyan election petition was struck out because the petitioner failed to pay the required Kshs. 100,000 security for costs within the legal deadline.
What this practically means
#Executive summary
#Key legal issues
#Nature of the security for costs requirement under section 78 of the Elections Act
It is a substantive requirement that goes to the root of jurisdiction, not a technicality.
The court traced section 78 of the Elections Act and Rule 13 of the 2017 Regulations, and adopted the Court of Appeal's interpretation of the parallel section 21 of the former National Assembly and Presidential Elections Act in Rotich Samuel Kimutai, plus High Court decisions (Milton Kimani Waitinga, Fatuma Zainabu Mohamed, Kubambatha Naomi Cidi), concluding non-payment deprives the court of jurisdiction to proceed.
Whether the election court can enlarge time for deposit of security
Yes - the court has discretion under Rule 19 of the Election Petition Rules, aligned with recent 2017 jurisprudence.
The court reviewed conflicting lines of authority: cases holding extension impossible (Evans Nyambaso Zedekiah, Muchemi J) versus cases permitting extension (Fatuma Zainabu Mohamed, Noah Wekesa, Yaite Philiph Okoronon, Tom Onyango Agimba, Samwel Kazungu Kambi). It concluded 2017 decisions adopt a liberal approach permitting extension where the court is properly moved and sufficient cause shown.
Whether the petitioner demonstrated sufficient cause for extension in this case
No; the application for extension of time was dismissed.
The petitioner's affidavit gave no elaborated reasons beyond 'reasons beyond his control', disclosed no financial status to prove inability to pay Kshs. 100,000/= at once, and annexed no evidence of readiness to pay. Unlike Wekesa, Yaite, Fatuma and Maywa, no deposit had been made. The burden of proof was not discharged, and over two months had elapsed since the deadline.
Legal principles established
#- Deposit of security for costs under section 78 of the Elections Act is a substantive requirement going to the root of the court's jurisdiction, not a technical or procedural one.
- An election court has jurisdiction under Rule 19 of the Election Petition Rules to enlarge time for deposit of security for costs when properly moved and with sufficient cause shown.
- Sufficient cause for extension must be demonstrated; indolence and mere averment of humble background do not suffice, and Article 159(2)(d) is not a panacea for lack of due diligence.
Court orders
#- 1.The petition herein is hereby struck out
- 2.The respondents are hereby awarded costs for the petitioner's application dated 9/11/2017
- 3.The costs for the petition awarded to both the respondents
- 4.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
- Elections Act, section 78; Election Petition Rules; gazettement of the court as an election court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Mdeizi v Independent Electoral & Bounderies Commission ( IEBC) & another [2017] KEMC 50 (KLR)", Case Analysis (2017). Not stated in the judgment (transferred from Migori Chief Magistrate's Court petition; related petitions Migori CM's Court Petitions No. 5 and 6 of 2017 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/50/eng@2017-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.