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MagistrateDismissedElection Petition No. 3 of 2017· [2017] KEMC 83 (KLR)

Cosmas Foleni Kenga v I.E.B.C & 2 others [2017] KEMC 83 (KLR)

Senior Principal Magistrate's Court at Kilifi
10 November 2017
4,428 words in judgment
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The bottom line

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A Kenyan court allowed an election petition to continue despite missing results, prioritizing fairness over strict form, but penalized sloppy drafting on costs.

What this practically means

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Executive summary

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This ruling of the Senior Principal Magistrate's Court at Kilifi in Election Petition No. 3 of 2017 (Tezo Ward) determined a Notice of Motion dated 2nd November 2017 by the Respondents seeking to strike out and dismiss the Petitioner's petition for offending Rules 8(1)(c) and 12(2) of the Elections (Parliamentary and County Elections) Petition Rules 2017, principally for omitting the election results and related dates. The Petitioner opposed, arguing the application was out of time under Rule 15(2), that further affidavits had been properly admitted under Rule 19(1), and that substantive justice under Article 159(2)(d) should prevail. The court framed three issues: timing of the application, the further affidavits, and the form and content of the petition. It held the application was properly before it since it sought to collapse the petition and was filed before trial; it declined to reopen the affidavit issue being functus officio; and on the substantive complaint, it found the date of declaration was pleaded in paragraph 4, and although the numerical results were absent from the petition and supporting affidavit, they were fully tabulated in the Respondents' pleadings. Weighing the strict-procedure school (Jyoti Basu, Mututho, Amina Hassan Ahmed) against the substantive justice school (Kinyanyi Onyango, Mwandiku, Salat, Midiwo), the court leaned towards the latter. The application was dismissed, with each party bearing their own costs given the Petitioner's non-compliance occasioned it, and trial was set for 14th to 17th November 2017.

Key legal issues

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01

Timing of the striking-out application

Holding

The application was properly before the court as it sought to collapse the petition at once, was filed before commencement of trial, and Rule 15(2) contains exception provisions

Reasoning

The court held the application was not interlocutory in the ordinary sense because its finding could determine the petition in limine. Even if interlocutory, it was filed before the trial commenced. The Rule also permits applications during trial where they could not reasonably have been brought earlier, so the objection on timing failed.

p. 2
02

Further affidavits filed on 13th October 2017

Holding

The matter was already determined and the court could not reopen it

Reasoning

The admissibility of the further affidavits had been canvassed and decided in an earlier ruling with justification given. The magistrate considered himself functus officio on that interlocutory decision and declined to revisit it.

p. 3
03

Form and content of the Petition - missing election results

Holding

Although Rule 8 requires results to be stated, the omission was not fatal because the results were numerically tabulated in the Respondents' pleadings

Reasoning

The court surveyed two schools of thought: strict procedural adherence versus substantive justice. It found the date of declaration was in paragraph 4 and the results, though absent from the Petition and supporting affidavit, were fully set out in the Responses. Following Midiwo, the court leaned towards the substantive justice school and declined to strike out the Petition.

p. 7

Legal principles established

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  • An election petition is a statutory proceeding governed strictly by the statute creating the jurisdiction
  • Omission of results from a petition may not warrant striking out where the results are otherwise on the record and no prejudice is occasioned
  • Article 159(2)(d) does not oust the obligation to comply with procedural imperatives

Court orders

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  1. 1.The Notice of Motion to strike out the Petition is dismissed
  2. 2.Each party to bear their own costs
  3. 3.The matter to start for hearing from 14th November, 2017 at 8.30am daily till 17th November, 2017
Jurisdiction invoked
Article 159 of the Constitution 2010; Sections 76(1)(a), 77, 78 and 80 of the 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, "Cosmas Foleni Kenga v I.E.B.C & 2 others [2017] KEMC 83 (KLR)", Case Analysis (2017). Election Petition No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/83/eng@2017-11-10

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