Olonana D. Ololtulet v Munka Nanyokie Julius Ole & 2 others [2017] KEMC 56 (KLR)
The bottom line
#A Kenyan magistrate court refused to throw out an election petition over technical pleading gaps, ruling that technicalities must not defeat justice.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition failed to plead the results of the election and the date of declaration as required by Rule 8(1)(c) and (d)
The Petition pleaded the votes garnered by the two leading contestants, the declaration of the 1st Respondent as winner and the gazettement date; any omission as to other candidates' votes was explained and supplemented by the annexed Form 36B, so the Petition was compliant
The court examined paragraphs 7 to 10 of the Petition and found the results of the two leading contestants, the declaration of the winner and the Gazette Notice of 22nd August 2017 were pleaded. Following Gatirau Peter Munya, the supporting affidavit and annexed documents form part of the pleadings, so the declaration form could be considered. Non-statement of other candidates' votes was a question of fact, adequately explained.
Whether the requirement to plead results is a mandatory substantive requirement whose breach is fatal
The requirements of Rules 8 and 12(2) are substantive, but whether non-compliance is fatal is a discretionary determination depending on the peculiar facts of each case and substantive justice
Relying on Francis Mwangangi Kilonzo, Nicholas Kiptoo Korir Salat, Dickson Mwenda Kithinji and Kidero v Waititu, the court accepted that election petitions must comply with mandatory provisions and that courts may strike out non-compliant petitions, but held that the effect of non-compliance is decided case by case with attention to substantive justice. The cited striking-out authorities were distinguishable on their facts.
Whether a preliminary objection filed on the hearing date, after pre-trial conference, was barred by Rule 15(2)
Rule 15(2) bars interlocutory applications after pre-trial conference, but a preliminary objection is not an interlocutory application, so the objection was properly before the court
The Petitioner argued the notice of preliminary objection was an ambush and an abuse of process since hearing dates had been taken at pre-trial. The court noted Rule 15(2) restricts interlocutory applications made after conclusion of the pre-trial conference, but held the objection was not an interlocutory application and the Rule does not bar it. The court nonetheless granted the Petitioner time to respond.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
- Whether non-compliance with Rules 8 and 12(2) of the Election Petition Rules is fatal is a matter of judicial discretion to be decided on the peculiar facts of each case with attention to substantive justice
- An affidavit in support of an election petition and documents annexed thereto are deemed part of the pleadings in the Petition
Court orders
#- 1.The 2nd and 4th Respondents Preliminary Objection is hereby dismissed.
- 2.Costs shall abide in the Petition.
- 3.The hearing of the Petition to commence today and proceed on priority basis as earlier scheduled.
- Jurisdiction invoked
- Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olonana D. Ololtulet v Munka Nanyokie Julius Ole & 2 others [2017] KEMC 56 (KLR)", Case Analysis (2017). Election Petition Number No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/56/eng@2017-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.