Jim Kenyanya v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 64 (KLR)
The bottom line
#The Kisii election court threw out Jim Kenyanya's petition because it omitted key required details, and late filings by respondents were excused.
What this practically means
#Executive summary
#Key legal issues
#Extension of time for filing a response to an election petition
The court has discretion under rule 11(1), section 80 of the Elections Act and rules 5(1) and 19(1) of the Rules to enlarge time and deem a late response duly filed
Rule 11(1) fixes a 7-day period for filing a response, but the court read it as conferring discretion. The 3rd respondent's advocate had relied on the pre-amendment rule 11(1) and the delay was attributable to counsel's mistake. The court exercised its discretion to allow the extension application and correspondingly dismissed the petitioner's application to strike out the responses.
Signing of an election petition by an advocate
An election petition is a pleading and an advocate instructed by the petitioner is a 'person duly authorized' to sign it; the petition is not rendered incompetent by the petitioner's failure to personally sign
Following Charles Kamuren vs Grace Jelagat Kipchom, the court held that an advocate, unlike an agent, requires no express written authority once instructed. The court distinguished Ismail Suleman, where one of numerous petitioners signed without authority of his co-petitioners, as factually incomparable.
Non-compliance with rule 8(1)(e) and rule 12(2)(c) and (e)
The petition omitted the date of declaration of results and the supporting affidavit omitted the results and grounds of presentation; these are mandatory requirements going to the root of the petition, rendering it fatally defective and liable to dismissal
Applying M'Nkiria and Mututho, the court held that the Rules carry the sanction of the Constitution and the Act, and Article 159(2)(d) does not excuse non-compliance. The defects could not be cured because amendment or supplementary affidavits would fall outside the 28-day period under Article 87(2). Without the results, any findings on the issues would serve no useful purpose.
Additional affidavits introducing new evidence
Further affidavits introducing information within the petitioner's possession at filing, and a new witness's affidavit filed without the affidavit being sworn at the time of filing the petition, are an abuse of process and are expunged
Leave granted at pre-trial was conditional on not introducing new evidence. The petitioner breached that condition by 'sneaking in' additional information to the respondents' detriment. The new affidavit by Samwel Oreti Mogiri contravened rule 12(3) and (4), which requires each intended witness to swear an affidavit at the time of filing the petition.
Legal principles established
#- An advocate, once instructed, qualifies as a person duly authorized to sign an election petition on behalf of the petitioner; absence of the petitioner's personal signature alone does not render the petition incompetent
- Compliance with the form and content requirements of the Election Petition Rules is substantive and mandatory; Article 159(2)(d) does not oust the obligation to comply with procedural imperatives
- A petition lacking the results being challenged and the grounds of challenge cannot be cured by particulars or supplementary affidavits after the 28-day constitutional period
Court orders
#- 1.Allowed the 3rd Respondent's application dated 4th October 2017 extending and/or enlarging time to file its response and deeming the response and affidavits filed on 20th September 2017 as duly filed within time
- 2.Dismissed the Petitioner's application dated 5th October 2017 seeking to strike out the Respondents' responses
- 3.Struck out/dismissed the Petition dated 6th September 2017 as fatally defective, with costs to the Respondents
- 4.Expunged from the record paragraphs 4, 6(a)-(h) of the Petitioner's further affidavit, paragraphs 2(a)-(g) of the affidavit of Peter Oseko Matangi, and the affidavit of Samwel Oreti Mogiri, all sworn 9th October 2017 and filed 10th October 2017
- 5.Allowed the 3rd Respondent's application dated 11th October 2017 with costs to the Petitioner
- 6.Awarded the 1st, 2nd and 3rd respondents Kshs 100,000/= each for the Petition and the application to strike out, with other incidental costs to be assessed and paid out of the security for costs on a pro-rata basis
- Jurisdiction invoked
- Elections Act and Election (Parliamentary & County Elections) Petition Rules, 2017 (election petition heard as court of first instance)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jim Kenyanya v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 64 (KLR)", Case Analysis (2017). Election Petition dated 6th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/64/eng@2017-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.