Fatuma Fille Elmi v I.E.B.C & 3 others [2017] KEMC 65 (KLR)
The bottom line
#A Kenyan court struck out an election petition because the petitioner never served it on the respondents, and 'substantial justice' arguments could not save it.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to serve the petition can be regularized under Article 159(2)(d)
No. Service goes to the root of the election petition because it triggers the time for filing responses; failure to serve cannot be cured under Article 159(2)(d).
The court reasoned that once served, the time for filing responses starts running, so without service it is impossible to determine when responses are due and within what timeframe the court should hear the petition. Service is a constitutional and statutory imperative under Article 87(3), section 77(2) of the Elections Act and Rule 10 of the Petition Rules, and procedural provisions that go to the root of the dispute must be adhered to notwithstanding Article 159(2)(d).
Whether the court should exercise discretion under Rule 19 to extend time for service
No. Rule 19 is discretionary ('may') and the petitioner's reasons - gazettement delay, distance, and desire to amend first - were not satisfactory; the mistake is inexcusable.
The court examined the circumstances of the failure to comply. The petitioner could have applied to amend after effecting service once the election court was gazetted; the distance between Wajir and Nairobi was not an excuse since the petitioner's advocate practises in Nairobi and the petitioner resides in Wajir; no futile attempts at service were disclosed; the petition remained unserved for over two and a half months and the petitioner had even contemplated withdrawal.
Whether leave to amend the petition should be granted
No. The petitioner did not show why amendment was needed and did not annex the draft proposed amendments for the court to interrogate.
The court held that the nature and magnitude of the intended changes were not laid bare; an annexure of the draft amendment would suffice. Some amendments would completely alter the pleadings and introduce a new petition through the back door, which is unacceptable given the strict statutory timelines for filing petitions. Even if the petition were still good, amendment could not be allowed.
Legal principles established
#- Failure to serve an election petition is a constitutional and statutory imperative that cannot be cured by invoking Article 159(2)(d)
- Service of an election petition is mandatory and mere knowledge of the petition cannot cure want of service
Court orders
#- 1.The petition is struck out for want of service
- 2.Half (Kshs. 50,000/-) of the security deposited by the petitioner is forfeited to the State as reimbursement for incurred costs
- 3.The remaining half of the security is to be refunded to the petitioner
- 4.A certificate under section 86(1) of the Elections Act No. 24 of 2011 shall issue forthwith
- Jurisdiction invoked
- Election petition under Article 87 of the Constitution and the Elections Act, heard in a gazetted election court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Zakayo Nyongesa Harrison v Independent Electoral & Boundaries Commission & 2 others [2018] KEMC 63 (KLR)[2018] KEMC 63 (KLR)5 Feb 2018
Cite this brief
#Cite this brief
Caselaw, "Fatuma Fille Elmi v I.E.B.C & 3 others [2017] KEMC 65 (KLR)", Case Analysis (2017). Election Petition Number 5 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/65/eng@2017-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.