Muslims for Human Rights & 3 others v Independent Electoral and Boundaries Commission & 5 others [2017] KEMC 66 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction over a petition challenging nominations of county assembly members
The court had jurisdiction; nomination disputes are justiciable before the election court.
Relying on the Supreme Court's decision in Moses Mwicigi v IEBC, the court reasoned that the Constitution recognises two modes of election – by ballot and by nomination through the party list – and any contest to an election, whatever its manifestation, must be by way of election petition. The IEBC dispute resolution mechanism was therefore not the exclusive forum, and the petitioners had come to the right forum.
Whether the preliminary objections were proper points of law
They were not; they touched on disputed facts.
Applying Mukisa Biscuits and subsequent authorities, the court held that a preliminary objection must consist of a point of law pleaded or arising clearly from the pleadings, capable of disposing of the suit without ascertainment of disputed facts. The respondents' submissions raised factual matters in issue, so the objections failed even though effectively unopposed.
Whether failure to deposit security for costs required striking out the petition
Yes; the omission was fatal.
Section 78 of the Elections Act and Rule 13 of the 2017 Petition Rules require a petitioner to deposit security within ten days of filing. The petitioners filed on September 25, 2017, made no deposit by November 27, 2017, sought no enlargement of time, and filed no response to the striking-out application. Following binding High Court decisions, the requirement is substantive, not technical, and goes to the root of jurisdiction.
Legal principles established
#- Failure to deposit security for costs within the statutory period is fatal to an election petition and goes to the root of the court's jurisdiction.
- A preliminary objection must be a point of law and should not depend on disputed facts.
- Both elections by ballot and elections by nomination are elections, and disputes arising from either are to be determined by the respective election court.
Court orders
#- 1.The Notices of Preliminary Objection filed by the 2nd, 4th and 6th Respondents (October 9, 2017) and by the 3rd Respondent (October 10, 2017) are dismissed
- 2.The 1st Respondent's Notice of Motion to enlarge time to file its response was granted and the response deemed duly filed; the Returning Officer Lamu West was allowed to file and serve his response within 7 days
- 3.The 6th Respondent's application for leave to file a further affidavit is allowed and the affidavit deemed properly on record
- 4.The petition is struck out for failure to deposit security for costs
- 5.The 1st Respondent is awarded costs capped at Kshs 30,000/-
- 6.The 2nd, 3rd, 4th and 6th Respondents are awarded a global sum capped at Kshs 150,000/- (not per respondent)
- 7.No award of costs is made for the 5th Respondent
- 8.A certificate of determination in accordance with section 86 of the Elections Act shall issue to the Independent Electoral and Boundaries Commission and Speaker of the Lamu County Assembly
- Jurisdiction invoked
- Article 87 and Article 88(4)(e) of the Constitution; Sections 74, 75 and 78 of the Elections Act, 2011; Elections (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muslims for Human Rights & 3 others v Independent Electoral and Boundaries Commission & 5 others [2017] KEMC 66 (KLR)", Case Analysis (2017). Election Petition No 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/66/eng@2017-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.