Susan Wangui Ngugi v Jubilee Party of Kenya & 3 others [2017] KEMC 58 (KLR)
The bottom line
#A Kenyan election court ruled you cannot amend an election petition to add new respondents — get your party list right the first time.
What this practically means
#Executive summary
#Key legal issues
#Applicability of Civil Procedure Rules to election petitions
The CPR do not apply to election petitions; the application founded on Order 8 Rule 1(3) was incompetent
The court held that election petitions are governed by the Elections (Parliamentary and County Elections) Petition Rules, 2017, and the Civil Procedure Act and Rules are excluded unless expressly provided for. Provisions on amendment of pleadings therefore cannot found an application to amend an election petition, and the irregularity cannot be cured by Article 159 or Section 80(1)(d) of the Elections Act.
Joinder of the two women as Respondents
Refused; the omission from the original petition was deliberate and amendment to add respondents has no statutory basis
The original petition expressly named the two women as persons not qualified for nomination and sought declarations against their nomination, showing the petitioner knew against whom she was aggrieved. Amending to join them now would amount to filing a new petition contrary to law, and Section 76(4) allows amendment only upon an allegation of an election offence.
Joinder as interested parties
Refused; the Muruatetu principles were not satisfied
Under Muruatetu, the intended interested party must move the court personally, demonstrate a personal stake and the prejudice of non-joinder. Here the application was made by the petitioner, not the intended interested parties; Yvonne Wanjiku Waweru expressly opposed joinder, and counsel could not competently depone to their interests.
Competence of supporting affidavit sworn by advocate
The affidavit was incompetent in a contentious election matter
Following Hamzan Musuri Kevogo, the court agreed that in a contentious electoral petition the litigant ought to have sworn the supporting affidavit; counsel who depones to contested matters of fact steps into the arena of the combatants, rendering the affidavit incompetent.
Legal principles established
#- Election petitions are sui generis and the Civil Procedure Rules and Act do not apply unless expressly provided for
- Article 159(2)(d) does not oust the obligation to comply with procedural imperatives
- Amendment of an election petition is permitted only within the limited window in Section 76(4) of the Elections Act, upon an allegation of an election offence and within 28 days
- Advocates should not swear affidavits on contentious matters of fact in litigation
Court orders
#- 1.The Notice of Motion dated 21st September 2017 is dismissed
- 2.The Petitioner to meet the 6th intended Respondent's costs of the application
- Jurisdiction invoked
- Elections Act, Section 75(1A) and Elections (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Wangui Ngugi v Jubilee Party of Kenya & 3 others [2017] KEMC 58 (KLR)", Case Analysis (2017). Election Petition No 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/58/eng@2017-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.