Theophilus Kalama Fondo v Returning Officer Magarini Sub County , Independent Electoral & Boundaries Commission & Peter Ziro Ngowa (Election Petition 1 of 2017) (Civ) [2017] KEMC 51 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this application should be struck out and or dismissed for failure to include a supporting affidavit
- 2.Whether the petitioner has complied with the requirements of Rule 8 and 12 of the Election (Parliamentary and County) Petition Rules
- 3.What is the consequence of failure to comply with the rules?
- 4.What orders should be made on costs?
Key legal issues
#Whether an application can be struck out for want of a supporting affidavit
No - applications raising pure points of law need not be supported by an affidavit; the application was properly on record.
The court held that a supporting affidavit is necessary only where a motion raises material facts not on the face of the pleadings. The application here was based on matters discernible on the face of the petition and supporting affidavit. The Kazungu Kambi case, relied on by the petitioner, was quoted out of context as it concerned impugned affidavits already filed, not a missing affidavit.
Whether the petitioner complied with Rules 8(1) and 12(2) of the Election Petition Rules
No. The petition did not state the detailed results, total votes cast, votes of all ten candidates, or the tabulated results; the supporting affidavit had the same defects.
The court applied the Supreme Court's definition of 'election results' in the Joho case, restating the Mututho definition: results are not confined to declaring who won but include votes cast, spoilt votes and votes garnered by each candidate. The petition only mentioned the winner's and petitioner's votes, presenting the Garashi Ward election as a two-horse race while eight other contestants were blacked out. The petitioner's plea of substantial compliance was an admission of non-compliance.
The consequence of non-compliance with Rules 8 and 12
The petition is fatally defective and must be struck out; Article 159(2)(d) affords no salvage. The court aligned itself with the strict school of thought.
The court reviewed the dichotomous 'strict', 'liberal' and 'third view' schools of authority and, bound by precedent as a subordinate court, chose the strict view. Election petitions are special proceedings with strict timelines; allowing room for amendment and further evidence would eat into the constitutionally-mandated expedition. The petitioner offered no justification for the omission and could not reconcile a prayer for recount with unpleaded results.
Legal principles established
#- A subordinate court is bound to follow precedent and cannot choose to make law where superior courts have spoken
- Rule 8(1) of the Election Petition Rules is mandatory: a petition must state the date of the election, the results as declared, and the date of declaration, and the supporting affidavit must replicate these
- Article 159(2)(d) cannot be invoked to excuse non-compliance with mandatory election petition requirements
Court orders
#- 1.The Petition by Theophilus Kalama Fondo dated 6th September 2017 and filed in Court on 6th September 2017 against Peter Ziro Ngowa be and is hereby struck out
- 2.The costs of the petition to be borne by the petitioner and capped at 1,500,000/-
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original election-petition jurisdiction under the Constitution (Article 87) and the Elections Act read with the Elections (Parliamentary and County Elections) Petition Rules, 2017
Relief refused
#Petitioner's prayer that the application and preliminary objection be dismissed and the petition proceed to hearing on merit
The court adopted the strict school of thought: failure to plead detailed election results in both the petition and supporting affidavit is fatal and incurable, and Article 159(2)(d) could not save the petition
Costs
The costs of the petition to be borne by the petitioner and capped at Kshs. 1,500,000/-
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. The Petition of by Theophilus Kalama Fondo dated 6th September 2017 and filed in Court on 6th September 2017 against Peter Ziro Ngowa be and is hereby struck out
2. The costs of the petition to be borne by the petitioner and capped at 1,500,000/It is so ordered.
Be that as it may and there being no justification to depart from the three schools of thought, I am persuaded to align myself with the strict school of thought.
For the subordinates courts ours is not to make law but follow the laws already made by the superior courts.
I am very much alive to the caution issued by the learned judges in the case of Raila Odinga and 5 Others v IEBC 2013 eKLR not to view article 159 (2) (d) as a panacea for all procedural technicalities.
Consequently the petitioner having failed to comply with the law in this regard, I have to reluctantly “wield that painful knife and chop off the head” of this petition
Issues in the judgment
#The petition number/case number is never stated in the judgment text
The judgment refers to the 2nd and 3rd respondents' submissions where the text contextually concerns the 1st and 2nd respondents, and the parties' submissions passages are duplicated with textual corruption in the judgment
Rule 8(1)(a) is omitted; the judgment reproduces only sub-rules (b), (c) and (d)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Theophilus Kalama Fondo v Returning Officer Magarini Sub County , Independent Electoral & Boundaries Commission & Peter Ziro Ngowa (Election Petition 1 of 2017) (Civ) [2017] KEMC 51 (KLR)", Case Analysis (2017). Election Petition (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/51/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.