Wilson Mwang'ombe Mwajumwa 5 & Others v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 75 (KLR)
The bottom line
#A Kenyan election petition collapsed because its supporting affidavits were forged, showing courts will not bend strict election rules to save a case.
What this practically means
#Executive summary
#Key legal issues
#Validity of affidavits commissioned by an unqualified person
The affidavits were neither commissioned by Advocate Henry Muranje nor with his knowledge, authority or permission; they are forgeries and not affidavits in law
Muranje testified on oath and was cross-examined; he denied commissioning the affidavits, denied the stamp and signature, denied any arrangement with Omollo Onyango & Co. Advocates and denied being in Voi. The alleged arrangement rested on unverified information from a clerk who swore no affidavit. The burden lay on the petitioners to prove the arrangement and they did not.
Whether striking out the affidavits compels striking out the petition
Yes. Election petitions are sui generis; Rules 8 and 12 are substantive and a bare petition is incurably defective. The civil-procedure leniency cases were distinguishable as addressing the Civil Procedure Rules
The court distinguished the Flystar/Microsoft line of cases as concerning Civil Procedure Rules, holding that election petitions are governed by special legislation. Breach of the Oaths and Statutory Declarations Act borders on criminality and Article 159 cannot condone it. The supporting affidavit is part of the pleading and must be filed within the constitutional timeline.
Competency of the respondents' applications
The petitioners' objection was misconceived; they relied on non-existent Rule 13(4) and obsolete provisions. Interlocutory applications are not confined to the seven-day window for responses
A time-based objection requires ascertainment of facts and is not a pure point of law, so it was treated as grounds of opposition. Rule 11 governs responses, not interlocutory applications; Rule 15 permits interlocutory applications before conclusion of the pre-trial conference. The applications were therefore properly filed and served.
Whether petitioners could file fresh affidavits
No. Judicial discretion cannot oust constitutional and statutory mandatory timelines; Article 87(2) and Section 76(1)(a) fix 28 days and Rule 19(2) ousts extension
The supporting affidavit and witness affidavits are deemed part of the pleadings and must be filed simultaneously with the petition within 28 days. Allowing fresh affidavits would trash mandatory legal and constitutional imperatives. The petitioners, through their advocate, failed to exercise due diligence and must bear the consequences.
Legal principles established
#- An affidavit purportedly commissioned by a person other than the named commissioner for oaths is a forgery and not an affidavit in law
- Rules 8 and 12 of the Elections (Parliamentary and County Elections) Petition Rules 2017 are substantive and mandatory, not mere technicalities
- A petition without a valid supporting affidavit filed within the constitutional timeline is incurably defective and cannot be saved by Article 159(2)(d)
Court orders
#- 1.The supporting affidavit sworn by the 1st petitioner and all annexures are struck out
- 2.The affidavit of intended witness Ernest Mwabagha Mkala is struck out
- 3.The petition is rendered incompetent and is struck out
- 4.Costs to the respondents, to be taxed before a taxing master unless otherwise agreed
- Jurisdiction invoked
- Elections Act No. 24 of 2011, Sections 76 and 87; Constitution of Kenya 2010, Article 87(2); Elections (Parliamentary and County Elections) Petition Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Mwang'ombe Mwajumwa 5 & Others v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 75 (KLR)", Case Analysis (2017). Election Petition No. 1 of 2017 (Voi). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/75/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.