Zeynab Allyow Issack v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 67 (KLR)

Article 87(2) of the Constitution and Section 76(1)(a) of the Elections Act require an election petition to be filed within 28 days of declaration of results, which for a nominated member is the gazettement of the party nomination list. The gazette notice was issued on 28/8/2017 and the petition filed 16/10/2017, about 48 days later. The timelines are mandatory; Rule 19(2) of the 2017 Rules expressly excludes extension of the filing period, and the Supreme Court has affirmed such petitions are nullities.

The 3rd Respondent argued the orders sought were not provided for under Rule 7 and would violate the 3rd Respondent's rights under Article 38. The court held the rule does not prescribe the orders a court may grant, and Rule 8(3) is not exhaustive of the particulars of relief a petitioner may seek. This ground of the preliminary objection therefore failed.

The Petitioner did not respond to the claim that no proper service was effected, which ought to have been done within 15 days. The court found that although the 3rd Respondent came to know of the petition through the registry, such knowledge could not cure want of service, following Patrick Ngeta Kimanzi. The failure to serve goes to the core of fair hearing and is fatal to the petition.

Rule 8 of the 2017 Rules prescribes mandatory contents, including the date of declaration of results. The petition did not indicate the gazette notice through which the 3rd Respondent was nominated, nor the date of the gazette notice, which is equivalent to the date of declaration of the election results. The court therefore held the petition deficient in the form and content required of an election petition, and that the deficiency was fatal.