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MagistrateDismissedElection Petition Number No. 2 of 2017· [2017] KEMC 56 (KLR)

Olonana D. Ololtulet v Munka Nanyokie Julius Ole & 2 others [2017] KEMC 56 (KLR)

Senior Resident Magistrate's Court
6 December 2017
3,320 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This is a ruling on a preliminary objection in an election petition challenging the Kilgoris Central Ward Member of County Assembly election in Narok County. The Petitioner sought scrutiny and recount of votes, a declaration that he was duly elected, issuance of a certificate of election, or in the alternative a fresh election. The 2nd and 3rd Respondents filed a preliminary objection on the hearing date contending that the Petition failed to plead the results of the election and the date of declaration of results as required by Rules 8(1)(c) and 8(1)(d) of the Elections (Parliamentary and County Elections) Petition Rules, 2017, rendering it fatally defective and liable to be struck out. The Petitioner countered that the objection violated Rule 15(2), amounted to an ambush, and that the Petition complied with the Rules. The court first confirmed that a preliminary objection, unlike an interlocutory application, is not barred by Rule 15(2) even if raised after pre-trial conference. It then found that the Petition pleaded the votes of the two leading contestants, the declaration of the 1st Respondent as winner and the Gazette Notice of 22nd August 2017, and that the supporting affidavit and annexed declaration form formed part of the pleadings. Distinguishing Jimmy Mkala Kazungu and Martha Wangari Karua, and relying on Francis Mwangangi Kilonzo, the court held that while the Rule 8 and 12(2) requirements are substantive, whether non-compliance is fatal is a discretionary, fact-specific determination guided by substantive justice under Article 159 of the Constitution. The preliminary objection was dismissed with costs to abide the Petition, which was directed to proceed to hearing on a priority basis.

Key legal issues

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01

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)

Holding

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

Reasoning

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.

p. 6
02

Whether the requirement to plead results is a mandatory substantive requirement whose breach is fatal

Holding

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

Reasoning

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.

p. 5
03

Whether a preliminary objection filed on the hearing date, after pre-trial conference, was barred by Rule 15(2)

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The 2nd and 4th Respondents Preliminary Objection is hereby dismissed.
  2. 2.Costs shall abide in the Petition.
  3. 3.The hearing of the Petition to commence today and proceed on priority basis as earlier scheduled.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 50
  • Elections Act, 2011Section 80(1)(d)
  • Elections Act, 2011Section 80(3)
  • Elections Act, 2011Section 76(4)
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rules 8(1), 12(2), 15 and 19

Cases cited (12)

  • Mukhisa Bisquits Manufacturing Co. Ltd Vs. West End Distributors
    (1969) E.A 696
  • Owners of the Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd
    Civil Appeal No. 50/1989
  • Jimmy Mkala Kazungu vs. IEBC and 2 others
    (2017) eKLR
  • Martha Wangare Karua vs. Independent Electoral & Boundaries Commission & 3 others
    2017 eKLR
  • Gatirau Peter Munya vs Dickson Mwenda Githinji and 2 Others
    Supreme Court Petition No 2B of 2014
  • Lemanken Aramat v Harun Meitamei Lempaka and 2 others
    Supreme Court Petition No. 5 of 2014
  • MNkiria Petkay Shen Miriti v Ragwa Samwel Mbae and 2 Others
    Election Petition Meru No. 4 of 2013
  • Raila 2 Petition (2017)
  • Francis Mwangangi Kilonzo vs. Independent Electoral and Boundaries Commission and 2 others
    2017 eKLR
  • Nicholas Kiptoo Korir Salat v IEBC and 6 Others
    2013 eKLR
  • Dickson Mwenda Kithinji vs. Gatirau Peter Munya and 2 others
    Civil Appeal No 38 of 2013
  • Evans Odhiambo Kidero and 4 Others vs. Ferdinand Ndungu Waititu and 4 Others
    Supreme Court Petition No 18 of 2014
Jurisdiction invoked
Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2017

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.