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MagistrateStruck OutPetition dated 5th September 2017 (Election Petition)· [2017] KEMC 60 (KLR)

Chege Ann Wanjiku v Clerk County Kiambu Assembly & 8 others [2017] KEMC 60 (KLR)

Chief Magistrate's Court (Election Court)
1 December 2017
PGP. Gichohi
2,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan election petition was struck out because the petitioner never deposited the mandatory Ksh. 100,000 security for costs within ten days of filing.

What this practically means

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Executive summary

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The Petitioner sought declarations that the 4th to 14th Respondents were not validly nominated to the Kiambu County Assembly on the Jubilee Party's Women Members Nominated list following the 8th August 2017 General Elections, quashing of Gazette Notice No. 8380, and an order that the 2nd Respondent gazette the Petitioner instead. Before directions could be taken, counsel for the 9th Respondent sought confirmation that the Petitioner had deposited security for costs. Counsel admitted no deposit had been made and orally sought leave to deposit within two weeks, citing the delay in gazettement of the magistrate's court to handle election petitions. The Respondents opposed, submitting the deposit was mandatory within ten days of filing and its absence rendered the petition incompetent. The court held that the issue is a point of law raisable at any time and orally; that it is not a technicality curable under Article 159; and that no provision of the Elections Act or Rules empowers the court to extend time for the deposit. Following Evans Nyambaso Zedekiah and Milton Kimani Waitinga, the court found that failure to deposit security for costs goes to the root of its jurisdiction. The oral application for extension was dismissed, the petition was struck out, a certificate under Section 86(1) of the Elections Act was ordered to issue, and, given the early stage of the proceedings, each party was ordered to bear its own costs.

Key legal issues

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01

Whether failure to deposit security for costs is fatal to an election petition

Holding

Yes; it is a substantive requirement going to jurisdiction and the petition must be struck out

Reasoning

Section 78(1) and (2)(c) of the Elections Act and Rule 13 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 mandate deposit of security for costs within ten days of filing in mandatory terms. The Petitioner admitted never depositing the Ksh. 100,000/= and made no attempt to do so. Following Evans Nyambaso Zedekiah and Milton Kimani Waitinga, non-payment deprives the court of jurisdiction to consider the merits.

p. 4
02

Whether Article 159 of the Constitution could cure the non-compliance

Holding

No; the requirement is substantive and governed by the Elections Act, not a procedural technicality

Reasoning

Counsel for the 2nd Respondent argued that election petitions are governed by their own rules and timelines and the oxygen rule does not apply; the court agreed, holding that the deposit requirement is substantive and the court could not be asked to amend mandatory statutory terms.

p. 3
03

Whether the objection was premature at the directions stage

Holding

No; the point of law may be raised at any time, including orally

Reasoning

The court held that a party need not await pre-trial or file a formal application to raise non-deposit of security for costs, rejecting the Petitioner's submission that it was prejudicial to determine the issue at directions.

p. 3

Legal principles established

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  • Deposit of security for costs is a point of law that may be raised at any time, even orally
  • Failure to deposit security for costs within the statutory period ousts the court's jurisdiction to hear the petition on the merits
  • Gazettement of the court is irrelevant to the petitioner's obligation to deposit security for costs

Court orders

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  1. 1.Dismissal of the Petitioner's oral application for leave to extend time to deposit security for costs
  2. 2.Striking out of the petition
  3. 3.Certificate to issue pursuant to Section 86(1) of the Elections Act, 2011
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 90
  • Constitution of Kenya, 2010Article 177
  • Constitution of Kenya, 2010Article 193
  • Constitution of Kenya, 2010Article 159
  • Elections Act No. 24 of 2011Section 25
  • Elections Act No. 24 of 2011Section 78(1) and (2)(b) and (c)
  • Elections Act No. 24 of 2011Section 86(1)
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rule 13
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rule 2
  • Elections (Party Primaries and Party Lists) Regulations 2017Regulation m
  • Civil Procedure Rules

Cases cited (2)

  • Evans Nyambaso Zedekiah & another v Independent Electoral and Boundaries Commission & 2 others
    [2013] eKLR
  • Milton Kimani Waitinga v Independent Electoral and Boundaries Commission & 2 others
    [2017] eKLR
Jurisdiction invoked
Election petition under Articles 90, 177 and 193 of the Constitution, Section 25 of the Elections Act and Elections (Party Primaries and Party Lists) Regulations 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, "Chege Ann Wanjiku v Clerk County Kiambu Assembly & 8 others [2017] KEMC 60 (KLR)", Case Analysis (2017). Petition dated 5th September 2017 (Election Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/60/eng@2017-12-01

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