Githinji Johnson Kamau v Kingara Benson Kamau, Kwanusu Dickson Simiyu & Independent Electoral and Boundaries Commission (Election Petition 1 of 2017) (Civ) [2017] KEMC 63 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Withdrawal of an election petition
A mere notice to withdraw a suit does not amount to a lawful application to withdraw an election petition; the notice was struck out as fatally defective.
Rules 21, 22 and 23 of the Election (Parliamentary and County) Petition Rules 2017 prescribe mandatory steps: leave of the court, an application in Form 5 stating grounds, service on respondents, publication, and supporting affidavits. The petitioner's notice to withdraw suit satisfied none of these, and the court found his claim that responses had not been filed contradicted by the record.
Deposit of security for costs
Non-deposit of security for costs within ten days of filing is fatal; the petition was dismissed.
Section 78 of the Election Act requires a petitioner to deposit security within ten days, and section 78(3) bars further proceedings on default. Rule 13(1) of the 2017 Rules reinforces this. The petitioner admitted non-compliance, and the court adopted the line of authority that security for costs is a substantive jurisdictional requirement.
Costs
The petitioner was ordered to pay the respondents' costs.
The court applied the cardinal principle that costs follow the event, finding that the petition caused the respondents to incur expenses in instructing counsel, preparing responses, submissions, research and court attendance.
Legal principles established
#- A petition shall not be withdrawn without leave of the election court, and the statutory rules on withdrawal are mandatory.
- A notice to withdraw a suit is not a valid application to withdraw an election petition where it does not comply with Rules 21, 22 and 23.
- Failure to deposit security for costs within ten days goes to the root of the court's jurisdiction and warrants dismissal of the petition.
- Costs follow the event.
Court orders
#- 1.The Notice to withdraw a suit is struck out
- 2.The petition is dismissed with costs to the respondents
- 3.A certificate under S. 86(1) of the Election Act to issue forthwith to the Chairperson IEBC and the Speaker, County Assembly, Kiambu
- Jurisdiction invoked
- Election Act, No. 24 of 2011 (election court jurisdiction over County Assembly election petitions); Election (Parliamentary and County) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji Johnson Kamau v Kingara Benson Kamau, Kwanusu Dickson Simiyu & Independent Electoral and Boundaries Commission (Election Petition 1 of 2017) (Civ) [2017] KEMC 63 (KLR)", Case Analysis (2017). Election Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/63/eng@2017-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.