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MagistrateDismissedElection Petition No 2 of 2017· [2017] KEMC 73 (KLR)

Margaret Nyathogora & 5 others v I.E.B.C & 14 others [2017] KEMC 73 (KLR)

Chief Magistrate's Court at Nyeri (Election Court)
31 October 2017
2,436 words in judgment
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The bottom line

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A Kenyan election court ruled that one Kshs.100,000 security deposit covers a petition jointly filed by multiple petitioners, no matter how many respondents.

What this practically means

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Executive summary

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Two applications sought dismissal of an election petition for inadequate security for costs under Section 78 of the Elections Act, 2011 and Rule 13(1) of the Elections (Parliamentary and County) Elections Regulations, 2017. The 1st Respondent argued that, with six petitioners, Kshs.600,000 (Kshs.100,000 each) should have been deposited rather than the Kshs.100,000 actually deposited. The 3rd to 15th Respondents argued that, as the petition challenged 13 County Assembly elections, Kshs.1,300,000 was due. The petitioners, through replying affidavits of Margaret Nyathongora, maintained there was one petition only and the single deposit of Kshs.100,000 satisfied the statute. All parties agreed the deposit was mandatory; the dispute was quantum. Relying principally on Philemon Chepkwony Motodo v IEBC (Kitale Election Petition No.11 of 2013), where Karanja J held that 'a petitioner' and 'a person' in Section 78 should be read in the plural so as not to bar access to justice, the court held the deposit relates to the petition rather than to individual petitioners or respondents. It noted the Motodo petition had many respondents yet a single deposit was ordered, and that security for costs must not bar persons with a common cause from jointly petitioning. Both applications were dismissed with costs to abide the petition.

Key legal issues

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01

Whether each of multiple petitioners must deposit separate security for costs under Section 78 of the Elections Act

Holding

No; the deposit relates to the petition, and words such as 'a petitioner'/'a person' should be read in the plural where petitioners share a common cause

Reasoning

The court adopted the reasoning in Philemon Chepkwony Motodo v IEBC, where R. Karanja J held that Parliament did not intend to block access to justice, and that 'a petitioner' and 'a person' in Section 78 should be interpreted in plural rather than singular terms. The deposit serves as a device to discourage unnecessary litigation on a 'loser pays' principle, not a barrier to joint petitioners.

p. 5
02

Whether the number of respondents (13 MCAs) multiplies the required deposit

Holding

No; the deposit relates to the petition, not the number of respondents

Reasoning

The court observed that the Motodo petition also had many respondents yet only one deposit was ordered, showing that the number of respondents is not what is considered but the petition itself. The Kshs.100,000 deposited was therefore adequate even against 13 respondents.

p. 6
03

Mandatory nature of the security deposit and timeliness

Holding

The deposit requirement is mandatory, but courts have not been rigid on time and have enlarged it on request; timeliness was not the issue here

Reasoning

All sides agreed the deposit must be made; the dispute was only on quantum. The authorities establish that failure to deposit is not a waivable irregularity, but courts have enlarged time where requested. Here the petitioners had in fact deposited Kshs.100,000 within time, so the applications were misconceived.

p. 5

Legal principles established

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  • The statutory deposit for security for costs in an election petition relates to the petition itself, not to each petitioner or each respondent; a single deposit suffices for a petition with multiple parties
  • Security for costs should not be used as a bar to persons with a common cause jointly petitioning

Court orders

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  1. 1.The 1st Respondent's Application dated 9.10.2017 is dismissed
  2. 2.The 3rd to 15th Respondents' Application dated 16.10.2017 is dismissed
  3. 3.Costs to abide in the petition

Authorities

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Legislation

  • Elections ActSection 78; 78(2); 78(2)(c)
  • Elections (Parliamentary and County) Elections Regulations, 2017Rule 13(1)
  • Constitution of Kenya, 2010Article 90(2); Article 159(2)(b); Article 177(1)(b) and (c)

Cases cited (10)

  • Rotich Samwel Kimutai -Vs- Ezekiel Lenyongopeta & 2 others
    (2005) eKLR
  • Evans Nyambaso Zedekiah & Another -Vs- Independent Electoral and Boundaries Commission & 2 others
    (2013) eKLR
  • Kumbatha Naomi Cidi -Vs- County Returning Officer, Kilifi & 3 others
    (2013) eKLR
  • Mwanahamisi Omor Komora -Vs- I.E.B.C
    Mombasa Election Petition No.1 of 2013 (2013) eKLR
  • Fatuma Zainabu Mohamed -Vs- Ghati Dennitah & 10 others
    (2013) eKLR
  • Philemon Chepkwony Lutodo/Motodo -Vs- IEBC and 2 others
    Kitale Election Petition No.11 of 2013 eKLR
  • Johnson Muthama -Vs- Minister of Justice and Constitution Affairs & others
    Nairobi Petition No.198 of 2011
  • Gatirai Peter Munya -Vs- David Muiraria & others
    Nyeri Civil Appeal Application No.38 of 2013 (2014) eKLR
  • Harit Sheth Advocate -Vs- Shamas Charqua
    Civil Appeal No.68 of 2008
  • Patrick Ngeta Minzi -Vs- Marcus Mutua Muluu & 2 others
    High Court Petition No.8 of 2013
Jurisdiction invoked
Election petition under the Constitution and the Elections Act, 2011 (election court jurisdiction); Article 159(2)(b) invoked by petitioners

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, "Margaret Nyathogora & 5 others v I.E.B.C & 14 others [2017] KEMC 73 (KLR)", Case Analysis (2017). Election Petition No 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/73/eng@2017-10-31

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