Theophilus Kalama Fondo v Returning Officer Magarini Sub County & 2 others [2017] KEMC 59 (KLR)
The bottom line
#An election petition that fails to state full election results in the petition and affidavit will be struck out in Kenya, regardless of how strong its merits might be.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this application should be struck out and or dismissed for failure to include a supporting affidavit
- 2.Whether the petitioner has complied with the requirements of Rule 8 and 12 of the Election (Parliamentary and County) Petition Rules
- 3.What is the consequence of failure to comply with the rules
- 4.What orders should be made on costs
Key legal issues
#Whether the application and preliminary objection could proceed without a supporting affidavit
The application was properly on record; no supporting affidavit was required since it raised points of law apparent on the face of the pleadings
The court found the petitioner had quoted Kazungu Kambi out of context, as that case concerned impugned affidavits already filed, not absent ones. Following Skair Associates Architects, the court held applications on points of law require no affidavit. The application was properly on record and would be considered.
Whether the petitioner complied with Rules 8(1) and 12(2) of the Election Petition Rules
Non-compliance established; the petition stated only two candidates' votes, omitting votes cast, spoilt votes, other contestants and the total, both in the petition and the supporting affidavit
The petition only mentioned the winner's and petitioner's votes, implying a two-horse race when eight other contestants participated. The court adopted the Supreme Court's definition of election results in the Joho case (restating Mututho) that results include votes cast, spoilt and garnered by each candidate. The petitioner's plea for substantial compliance was an admission of non-compliance.
The consequence of non-compliance with Rules 8 and 12
The court aligned itself with the strict school of thought: the petition is fatally defective, incurable by amendment, and Article 159(2)(d) does not salvage it
As a subordinate court the magistrate was bound to follow precedent from superior courts. Weighing the strict, liberal and third views, the court adopted the strict school, noting election petitions have strict constitutional timelines under Article 87(2), leaving limited room for amendments or additional evidence. The petitioner gave no justification for omitting results available immediately after the gazette notice.
Legal principles established
#- An election petition must state the detailed results of the election and the date and manner of declaration in both the petition and the supporting affidavit; failure renders it fatally defective and it must be struck out
- An application raising pure points of law need not be supported by a supporting affidavit
Court orders
#- 1.The Petition by Theophilus Kalama Fondo dated 6th September 2017 and filed in Court on 6th September 2017 against Peter Ziro Ngowa be and is hereby struck out
- 2.The costs of the petition to be borne by the petitioner and capped at 1,500,000/-
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 87 of the Constitution read with the Elections Act and the Elections (Parliamentary and County Elections) Petition Rules, 2017
Relief refused
#Petitioner's prayer to dismiss the respondents' application for want of a supporting affidavit
Applications on pure points of law need not be supported by an affidavit; the Kazungu Kambi case was quoted out of context
Petitioner's plea for substantial compliance and excusal of omissions under Article 159(2)(d)
Petition failed to comply with mandatory provisions of Rules 8 and 12; defects were substantive, not technical
Costs
The costs of the petition to be borne by the petitioner and capped at Kshs 1,500,000/-
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. The Petition of by Theophilus Kalama Fondo dated 6th September 2017 and filed in Court on 6th September 2017 against Peter Ziro Ngowa be and is hereby struck out
2. The costs of the petition to be borne by the petitioner and capped at 1,500,000/It is so ordered.
Be that as it may and there being no justification to depart from the three schools of thought, I am persuaded to align myself with the strict school of thought.
I therefore find that the mandatory provisions of the rules have not been complied with by the petitioner.
Consequently the petitioner having failed to comply with the law in this regard, I have to reluctantly "wield that painful knife and chop off the head" of this petition
Pleadings that are misleading like the current one wherein the petitioner gives an impression that this election for Garashi Ward was a two horse race and other contestants (8 in number) are blacked out and the total votes counted are not indicated in the face of the petition is a grave violation of the rules
Issues in the judgment
#The judgment reproduces parties' submissions twice, with apparent duplication of quoted material within the text
The judgment refers to itself as "this being a subordinate court" and cites cases said to be dichotomous, but mislabels the source of some embedded quotations (e.g. respondents' submissions appear within court's analysis)
Typographical/transcription errors in quoted authorities (e.g. "incurably for failure", "deficient inform", "Evans Nyamboso/Zedekiah" spelled variously)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Theophilus Kalama Fondo v Returning Officer Magarini Sub County & 2 others [2017] KEMC 59 (KLR)", Case Analysis (2017). Election Petition (Malindi), 2017 (filed 6th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/59/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.