Salim Mweni Athman v Independent Electoral & Boundaries Commisssion (I.E.B.C) & 2 others [2017] KEMC 55 (KLR)
The bottom line
#A Kenyan election petition was struck out because the petitioner never paid the required security for costs and failed to disclose the election results in the petition.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to deposit security for costs within the time prescribed by Section 78(2) of the Elections Act and Rule 13 of the Election Petition Rules 2017
Failure to deposit security for costs within the prescribed 10 days, with no application for extension of time and no justification offered, renders the petition incompetent and leaves the court without jurisdiction to take further action; the petition is struck out.
The court reviewed two conflicting schools of authority: one treating non-deposit as fatal, the other permitting judicial discretion where sufficient cause is shown. Even under the discretionary school, extension requires justification, which the petitioner never offered despite being granted leave by consent to apply for extension. The petitioner was 39 days out of time, filed no replying affidavit, and was absent when the application was heard. Following the strict school and Ngugi J's reasoning in Milton Kimani Waitinga, non-deposit goes to the root of jurisdiction.
Consequences of failure to disclose election results and date of declaration in the petition and supporting affidavit (Rules 8(1)(c) and (d) and 12(2)(c) and (d))
Non-disclosure of the results and the date of announcement of results in both the petition and supporting affidavit is a grave violation; the court aligns itself with the strict school of thought that such omission is fatal and the petition must be struck out.
The court adopted the strict school, noting the petition and affidavit omitted the date of announcement, votes cast, spoilt votes, and votes per candidate, with no annexures and no explanation. It held affidavits cannot be converted into pleadings, and no justification (e.g. unavailability of results to agents) was offered for omitting information readily available. Article 159(2)(d) could not rescue an indolent petitioner, and strict compliance is warranted given the special, time-bound nature of election petitions.
Whether the supporting affidavit offends the Oaths and Statutory Declarations Act
Section 4 of the Oaths and Statutory Declarations Act has no bearing on the respondents' allegations, but the affidavit was defective in not bearing a title similar to the petition or referencing the election in issue; following Samuel Kazungu Kambi, the court declined to expunge affidavits for that reason alone.
The court found Section 4 (concerning commissioners for oaths acting as advocates on matters in which they are interested) did not apply to the complaint raised. On the heading defect, it preferred the view of Korir J in Samuel Kazungu Kambi that Rule 12 does not require the affidavit to bear a heading similar to the petition, so expungement was not merited on that ground, though it referenced the Ismail Suleman expungement authority.
Legal principles established
#- Failure to deposit security for costs in an election petition goes to the root of the jurisdiction of the court to hear the petition; an indolent petitioner who neither deposits security nor offers justification leaves the court no option but to strike out the petition.
- An election petition is a special statutory proceeding to be conducted strictly in accordance with the statute and rules creating the jurisdiction.
- Article 159(2)(d) of the Constitution (substantial justice) cannot be used to salvage a petitioner who has failed to comply with mandatory statutory requirements.
- A subordinate election court must follow the precedent of the superior courts where their decisions on identical issues are in issue, choosing between opposing schools of thought rather than departing from them.
Court orders
#- 1.Petition is struck out
- 2.The Respondents are awarded the cost of the petition
- 3.Certificate of determination in accordance with section 86 of the Elections Act to issue to the I.E.B.C and Speaker of the National Assembly
- Jurisdiction invoked
- Article 87(1) of the Constitution; Election (Parliamentary and County Elections) Petition Rules 2017; Section 78 of the Elections Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim Mweni Athman v Independent Electoral & Boundaries Commisssion (I.E.B.C) & 2 others [2017] KEMC 55 (KLR)", Case Analysis (2017). not stated in the judgment (Election Petition, Member of County Assembly election of 8/8/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/55/eng@2017-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.