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MagistrateDismissedElection Petition No. 1 of 2017 (Voi)· [2017] KEMC 75 (KLR)

Wilson Mwang'ombe Mwajumwa 5 & Others v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 75 (KLR)

Chief Magistrate's Court (Election Court), Voi
24 November 2017
9,303 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Election Court at Voi (Senior Principal Magistrate Elena G. Nderitu) on two notices of motion by the respondents seeking to strike out the petitioners' supporting affidavits and, consequently, the election petition challenging the election of Godfrey Fundi Mwambi as MCA for Mbololo Ward in the August 2017 General Election. The respondents alleged that the affidavits of the 1st petitioner and of intended witness Ernest Mwabagha Mkala, purportedly commissioned by Advocate Henry Muranje, were forgeries. The petitioners' preliminary objections on timeliness and Rule 13 failed: they relied on non-existent Rule 13(4) and obsolete rules, and interlocutory applications were properly before the court. Advocate Muranje testified on oath and was cross-examined; he denied commissioning the affidavits, denied any arrangement with Omollo Onyango & Co. Advocates, and disowned the stamp and signature. The court found the affidavits were not commissioned by him and were mere forgeries, offending the Oaths and Statutory Declarations Act and the Penal Code. The court distinguished the civil-procedure leniency authorities, holding election petitions sui generis and Rules 8 and 12 substantive and mandatory. Refusing leave to file fresh affidavits because Article 87(2) and Section 76(1)(a) fix an unextendable 28-day timeline, the court struck out the affidavits and the petition with costs to the respondents, costs to be taxed. No declaration of election was made and no DPP referral issued.

Key legal issues

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01

Validity of affidavits commissioned by an unqualified person

Holding

The affidavits were neither commissioned by Advocate Henry Muranje nor with his knowledge, authority or permission; they are forgeries and not affidavits in law

Reasoning

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.

p. 11
02

Whether striking out the affidavits compels striking out the petition

Holding

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

Reasoning

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.

p. 14
03

Competency of the respondents' applications

Holding

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

Reasoning

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.

p. 10
04

Whether petitioners could file fresh affidavits

Holding

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

Reasoning

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.

p. 16

Legal principles established

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  • 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

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  1. 1.The supporting affidavit sworn by the 1st petitioner and all annexures are struck out
  2. 2.The affidavit of intended witness Ernest Mwabagha Mkala is struck out
  3. 3.The petition is rendered incompetent and is struck out
  4. 4.Costs to the respondents, to be taxed before a taxing master unless otherwise agreed

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 87(2)
  • Elections Act No. 24 of 2011Sections 75(3)(a), 76(1)(a), 87(1)&(2), 96
  • Elections (Parliamentary and County Elections) Petition Rules 2017Rules 4, 7, 8(4)(b), 10, 11(1), 12(1),(3),(4),(14), 13(1), 15(1),(14), 19(1)&(2)
  • Election Offences Act No. 37 of 2016Sections 13(j), 87
  • Penal CodeSection 347
  • Oaths and Statutory Declarations Act Cap 15Sections 2(1), 3, 4(1), 5, 6, 7, 11
  • Civil Procedure Rules 2010Order 19

Cases cited (17)

  • Nicholas Kiptoo Arab Korir Salat vs IEBC and 6 others
    (2013) eKLR
  • Jimmy Mkala Kazungu vs IEBC and two others
    Mombasa Election Petition No. 9 of 2017
  • Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others
    (2014) eKLR
  • Ferdinand Ndungu Waititu vs IEBC and 8 others
    (2013) eKLR
  • Microsoft Corporation vs Mitsumi Computers Garage Ltd & Another
    (2001) eKLR; 2001 KLR 470
  • Caltex Oil (Kenya) Ltd vs New Stadium Service Station Ltd and Another
    (2002) eKLR
  • Hosea Mundui Kiplagat vs Sammy Komen Mwaita & 2 others
    (2013) eKLR
  • David Wamatsi Omusotsi vs The Returning Officer Mumias East Constituency & 2 others
    (2017) eKLR
  • Nairobi Flystar Ltd vs Delhis Bank Ltd
    (2015) eKLR
  • Pastificio Lucio Garofalo Spa vs Security & Fire Equipment Co. & Another
    (2001) KLR 483
  • Salesio M'aribu vs Meru County Council
    Civil Appeal No. 183 of 2002
  • Kenya Commercial Finance Company Ltd vs Richard Akwesera Onditi
    Civil Appeal No. 329 of 2009 Nairobi
  • H.A Katema & 2 others vs Nathaniel Mramba & 9 others
    HCC No. 7 of 2016 Voi
  • Mukisa Biscuit Company vs Westend Distributors Ltd
    (1969) E.A 696
  • M'nkiria Petkay Shen Miriti vs Ragwa Samuel Mbae & 2 others
  • Dickson Mwenda Githinji vs Gatirau Peter Munya & 2 others
    2014 eKLR
  • James Francis Kariuki and Another vs United Insurance Co. Ltd
    HCCC No. 1450 of 2000
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

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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, "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.