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MagistratePartially AllowedElection Petition No. 5 of 2017· [2017] KEMC 68 (KLR)

Abel Kipkilei Kiptoo v Independent Electoral and Boundaries Commision (I.E.B.C) & 2 others [2017] KEMC 68 (KLR)

Chief Magistrates Court at Kilifi (Election Court)
27 November 2017
LLL. T. Lewa
3,442 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan election petition was struck out because the petitioner never stated the actual election results, proving pleading rules in election cases are mandatory.

What this practically means

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Executive summary

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The 1st and 2nd respondents (IEBC and the Returning Officer for Kilifi South Constituency) applied under Article 82(2) of the Constitution, section 2 of the Elections Act, regulations 83 and 87 of the Election General Regulations and Rules 8 and 12 of the Election (Parliamentary and County Elections) Petition Rules 2017 for the petitioner's election petition to be struck out or, alternatively, dismissed. They argued that the petition contravened Article 87(2) of the Constitution and Rules 8 and 12 by failing to state the date of declaration of results and the results themselves. The petitioner opposed, contending the application was a technicality lodged in bad faith to scuttle a confirmed hearing, and invoked section 83 of the Elections Act and Article 159(2)(d). Senior Resident Magistrate L. T. Lewa framed four issues and found that neither the petition nor the supporting affidavit particularized the election results or the date of declaration, contrary to the mandatory requirements of Rules 8(1) and 12. Relying on John Mututho v Jayne Kihara, Ali Hassan Joho v Suleiman Shabal and Mbaraka Issa Kombo v IEBC, the court held the omissions fatal and incurable by Article 159(2)(d) or section 83, rules of procedure being the handmaidens of justice. Distinguishing striking out from dismissal, and noting the merits were untested, the court confined itself to striking out: the petition dated 6th September 2017 was struck out with costs to the respondents. The application was therefore allowed; the alternative prayer for dismissal was not granted.

Key legal issues

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01

Compliance with Rules 8 and 12 of the Election Petition Rules 2017

Holding

The petition and supporting affidavit failed to disclose the election results, the date of declaration and (in the affidavit) the date of the election, in breach of the mandatory content requirements

Reasoning

Rules 8 and 12 command in identical terms that the petition and supporting affidavit SHALL STATE the date of the election, the results however declared, and the date of declaration of results. Reading paragraphs 1 to 13 of the petition and 1 to 15 of the affidavit, the results were never particularized; paragraph 4 merely described the 3rd respondent as the declared winner. Such omissions go to substance, not mere form.

02

Whether the omissions could be cured by Article 159(2)(d) of the Constitution and section 83 of the Elections Act

Holding

No - the defects are of mandatory content and cannot be excused under the overrides against technicalities

Reasoning

Relying on Nicholas Kiptoo Arap Korir v IEBC and Raila v IEBC (2013), the court held that Article 159(2)(d) was never intended to oust the obligation of litigants to comply with procedural imperatives; applying it to cure the omission of results would create an anarchical free-for-all. Rules of procedure remain the handmaidens of justice and a departure from the mandatory prescriptions cannot be excused, overlooked or ignored.

p. 6
03

Whether striking out or dismissal was the appropriate remedy

Holding

Striking out, since the application contested form and the merits had not been tested

Reasoning

Adopting Mbaraka Issa Kombo v IEBC, the court distinguished striking out (a summary procedure investigating no merit, appropriate where a pleading is defectively framed) from dismissal (which follows scrutiny of merits and bars re-litigation). Because the application attacked form, content and compliance with mandatory rules rather than the merits, the court confined itself to striking out, preserving the petitioner's ability to re-file if limitation allows.

p. 4
04

Timing of the application under Rule 15(2)

Holding

Rule 15(2) was not a bar because the application disclosed grave omissions going to the heart of the dispute

Reasoning

Although Rule 15 cautions courts against entertaining interlocutory applications after pre-trial directions are exhausted where the application could have been brought earlier, the court held that the nature of this application could not be ignored, as it pointed to omissions whose ramifications ran to the heart of the dispute - the absence of the very results being challenged.

p. 6

Legal principles established

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  • A petition challenging an election result must state the date of the election, the results as declared and the date of declaration of results; failure to plead the results renders the petition incurably defective and it must be struck out
  • Article 159(2)(d) of the Constitution and section 83 of the Elections Act cannot cure an omission of the essential content of an election petition
  • Striking out and dismissal are distinct remedies: striking out is a summary pre-hearing procedure, dismissal follows consideration of the merits and bars re-litigation

Court orders

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  1. 1.Prayer no. 1 of the Notice of Motion dated 27th October 2017 allowed to the extent that the petition dated 6th September 2017 and filed on 7th September 2017 is struck out
  2. 2.Costs of the application and petition awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 82(2)
  • Constitution of Kenya, 2010Article 87(2)
  • Constitution of Kenya, 2010Article 159(2)(d) and (e)
  • Elections Act, 2011Section 2 (definition of 'Election results')
  • Elections Act, 2011Section 80(1)(d)
  • Elections Act, 2011Section 83
  • Election (Parliamentary and County Elections) Petition Rules, 2017Rules 8(1), 12(2)(c) and (d), 15(2)
  • Election General RegulationsRegulations 83 and 87

Cases cited (9)

  • John Mututho v Jayne Kihara
    (2008) 1 KLR
  • Amina Hassan Ahmed v Returning Officer, Mandera County & 2 Others
    (2013) eKLR
  • Rozah Akinyi Buyu v IEBC & 2 Others
    (2014) eKLR
  • Evans Nyamboso Zedekieah & Another v IEBC & 2 Others
    (2013) eKLR
  • Jimmy Mkala Kazungu v IEBC & 2 Others, Petition No. 9 of 2017
  • Raila v IEBC & 2 Others (2013)
  • Ali Hassan Joho v Suleiman Shabal & 2 Others
    (2014) eKLR
  • Mbaraka Issa Kombo v I.E.B.C & 3 Others, Election Petition Case No. 10 of 2017 (Malindi)
  • Nicholas Kiptoo Arap Korir v I.E.B.C & 6 Others
Jurisdiction invoked
Constitution of Kenya 2010, Article 82(2); Election (Parliamentary and County Elections) Petition Rules 2017

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abel Kipkilei Kiptoo v Independent Electoral and Boundaries Commision (I.E.B.C) & 2 others [2017] KEMC 68 (KLR)", Case Analysis (2017). Election Petition No. 5 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/68/eng@2017-11-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.