Kapusia Ole Saloni v James Kipas Langues & 2 others [2017] KEMC 76 (KLR)
The bottom line
#A Kenyan election court allowed a ward election petition to proceed even though the results were missing from the petition itself, prioritising substance over technicalities.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the preliminary objection under Rule 15(2) of the Election Petition Rules
The objection was properly before the court despite being raised after pre-trial, because it raises pure points of law which may be raised at any stage.
While Rule 15 reflects the intention that objections be raised in limine given strict electoral timelines, points of law can be raised at any stage of trial. The court followed Martha Karua on this point and found the objection satisfied the Mukisa Biscuit test of a pure point of law, namely non-compliance with Rule 8(1)(c). Failure to specify orders sought was not fatal since the only consequence of upholding the objection would be striking out.
Whether failure to state results in the petition body breaches Rule 8(1)(c)
Yes, there was technical non-compliance: the results were tabulated only in the supporting affidavit sworn on 6th September 2017, not in the petition itself.
Rule 8(1)(c) requires an election petition to state the results of the election, if any, and however declared, and Rule 12(2) requires the same particulars in the supporting affidavit. The Petitioner did not deny that the results were not stated or tabulated in the petition. The court held the 'if any' proviso does not give a petitioner a choice whether to plead results where results were in fact declared.
Consequences of non-compliance with Rule 8(1)(c) - striking out versus purposive interpretation
The omission did not render the petition incurably defective; there was substantive compliance and the preliminary objection was dismissed.
The court weighed two conflicting schools of authority: Mututho and Martha Karua (strict/mandatory approach) versus Kinyanyi, Mwandiku and Jakoyo Midiwo (purposive approach under Article 159(2)(d)). Adopting the purposive line, and finding the Court of Appeal's post-2010 decision in Salat persuasive, the court held the affidavit and annexures form part of the pleadings, the results were before the court and on the record including in the respondents' own filings, and no prejudice would be suffered. Mututho was distinguished as based on repealed election laws.
Stare decisis and conflicting High Court decisions
Superior Court decisions bind lower courts under Article 163(7), but where two High Court decisions conflict, the lower court must decide which is most persuasive on the facts.
Relying on Jasbir Singh Rai and George Mike Wanjohi v Stephen Kariuki, the court confirmed the doctrine of stare decisis under Article 163(7). The Court of Appeal decision in Salat (post-2010 Constitution) was found persuasive and more alive to Article 159(2)(d), whereas Mututho was distinguished as resting on the repealed election laws and the defunct Electoral Commission of Kenya.
Legal principles established
#- A preliminary objection raises pure points of law which can be raised at any stage of the trial process, notwithstanding the desirability of raising them in limine.
- An election petition can only be dismissed after hearing on the merits; a defective pleading is struck out, not dismissed.
- Where faced with two conflicting High Court decisions, a lower court decides which is most persuasive considering the circumstances and distinguishable facts.
- The affidavit in support of an election petition, and documents annexed to it, are deemed part of the petition and therefore part of the pleadings.
- Failure to tabulate results in the body of an election petition, where the results appear in the supporting affidavit, amounts to substantive compliance and does not render the petition incurably defective; Rule 5 cloths election courts with discretion under Article 159(2)(d).
Court orders
#- 1.The Preliminary Objection dated 17th November 2017 is dismissed
- 2.The Petition shall proceed for hearing on merits as earlier directed
- 3.Costs of the Preliminary Objection shall be costs in the cause
- Jurisdiction invoked
- Article 87 of the Constitution of Kenya, 2010 (timely settlement of electoral disputes) read with the Elections Act and the Election (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kapusia Ole Saloni v James Kipas Langues & 2 others [2017] KEMC 76 (KLR)", Case Analysis (2017). Election Petition (Suswa Ward) - number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/76/eng@2017-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.