Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateStruck OutElection Petition No. 3 of 2017· [2017] KEMC 57 (KLR)

Henry Wanyoike Wahu & 2 others v County Assembly of Kiambu & 3 others [2017] KEMC 57 (KLR)

Chief Magistrate's Court at Kiambu
1 December 2017
PGP. Gichohi
2,235 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out an election petition because the petitioners missed the mandatory ten-day deadline to deposit security for costs, and no extension was possible.

What this practically means

#

Executive summary

#
The petitioners filed a petition in the High Court at Milimani (Petition No. 440 of 2017) seeking an injunction to stop the swearing-in of the 3rd Respondent's nominated Members of the Kiambu County Assembly, declarations that the party list and gazettement in Gazette Notice No. 8380 were null and void for breach of various constitutional provisions, and orders for their inclusion in a fresh nomination list. Mativo J found it was an election petition that should have been filed in the Magistrate's Court at Kiambu under Section 75 of the Elections Act and transferred it, where it became Election Petition No. 3 of 2017. At directions before the Chief Magistrate, it emerged the petitioners had not deposited the statutory security for costs of Ksh. 100,000. Counsel made an oral application for leave to deposit out of time, supported by some respondents but opposed by the 3rd Respondent and the intended interested parties. The court held that Section 78(1) of the Elections Act and Rule 13 of the 2017 Petition Rules impose a mandatory ten-day deadline; the petitioners had taken no steps for over two and a half months; the excuses of the transfer from Milimani and awaiting registry directions were untenable; and there is no provision for extension of time. Following Milton Kimani Waitinga, failure to deposit security goes to the root of jurisdiction. The oral application was dismissed, the petition struck out, a certificate under Section 86(1) of the Elections Act ordered to issue, and each party ordered to bear its own costs.

Key legal issues

#
01

Whether failure to deposit security for costs within ten days of filing an election petition is fatal to the petition

Holding

Yes - the requirement is mandatory, there is no provision for extension of time, and failure deprives the court of jurisdiction, warranting striking out the petition.

Reasoning

Section 78(1) of the Elections Act and Rule 13 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 require a petitioner to deposit security for costs within ten days of filing. The petitioners admitted no deposit had been made over two and a half months after filing and made no earlier attempt to seek leave. The excuse of awaiting registry directions was rejected as Rule 13 requires no directions. Following Milton Kimani Waitinga, the court lacked jurisdiction to continue and struck out the petition.

p. 4
02

Whether the court has discretion to grant leave to extend time to deposit security for costs

Holding

No - the rules contain no provision for leave to extend time, and the fact that some respondents did not oppose the application is immaterial.

Reasoning

The court found no provision permitting extension of time for the deposit. Counsel for the petitioners admitted the deposit had not been made when prompted by the court on 21/11/2017. Even if some respondents did not oppose, the mandatory statutory requirement could not be waived by consent; the court relied on superior court authority striking out petitions for non-deposit of security.

p. 5

Legal principles established

#
  • Failure to deposit security for costs in election petitions within the mandatory ten-day period goes to the root of the jurisdiction of the court to hear the petition.

Court orders

#
  1. 1.Dismissal of the oral application for leave to extend time to deposit security for costs
  2. 2.Striking out of the petition
  3. 3.A certificate to issue pursuant to Section 86(1) of the Elections Act, 2011
  4. 4.Each party to bear his own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 21, 22, 27, 50(1), 90, 177 & 197
  • Elections ActSections 36, 75, 78(1), 78(2)(b) and (c), 86(1)
  • County Government ActSection 7
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rules 2 and 13

Cases cited (4)

  • Milton Kimani Waitinga v Independent Electoral and Boundaries Commission & 2 others
    [2017] eKLR
  • Evans Nyambaso Zedekiah & Another v Independent Electoral and Boundaries Commission & 2 others
    [2013] eKLR
  • Fatuma Zainabu Mohamed v Ghati Dennitali & 10 others
    Kisii Election Petition No. 6 of 2013 (unreported)
  • Kumbatha Naomi Cidi v County Returning Officer, Kilifi & 3 Others
    [2013] eKLR
Jurisdiction invoked
Sections 75, 78 and 86 of the Elections Act; Elections (Parliamentary and County Elections) Petition Rules, 2017

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Henry Wanyoike Wahu & 2 others v County Assembly of Kiambu & 3 others [2017] KEMC 57 (KLR)", Case Analysis (2017). Election Petition No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/57/eng@2017-12-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.