Margaret Nyathogora & 5 others v I.E.B.C & 14 others [2017] KEMC 73 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether each of multiple petitioners must deposit separate security for costs under Section 78 of the Elections Act
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
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.
Whether the number of respondents (13 MCAs) multiplies the required deposit
No; the deposit relates to the petition, not the number of respondents
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.
Mandatory nature of the security deposit and timeliness
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
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.
Legal principles established
#- 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
#- 1.The 1st Respondent's Application dated 9.10.2017 is dismissed
- 2.The 3rd to 15th Respondents' Application dated 16.10.2017 is dismissed
- 3.Costs to abide in the petition
- Jurisdiction invoked
- Election petition under the Constitution and the Elections Act, 2011 (election court jurisdiction); Article 159(2)(b) invoked by petitioners
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.