Joseph Kiragu Muthura v Pius Njogu Kathuri & 2 others [2017] KEMC 87 (KLR)
The bottom line
#A Kenyan election court refused to strike out a petition over a defective affidavit, blaming the advocate—not the client—and allowed a late response to be filed.
What this practically means
#Executive summary
#Key legal issues
#Validity of affidavits attested by an advocate without a practising certificate
The petition was not struck out; the affidavits were excusable since they were drawn by a qualified advocate and the deponents trusted the Commissioner for Oaths
The court found Robinson Ndata Mugo had no practising certificate since 2011. Following the Supreme Court in National Bank of Kenya Ltd v Anaj Warehousing Ltd, invalidation is reserved for non-advocates or advocates struck off the roll. The petitioner and witnesses were at the mercy of the commissioner and bore no blame; striking out would frustrate the oxygen principle under Rule 4 of the Election Rules and the public interest in determining election disputes on the merits.
Enlargement of time to file response out of time
Time was enlarged and the response filed 2 days late deemed duly filed, no prejudice to the petitioner having been shown
Relying on Rule 19(1) of the Elections (Parliamentary and County Elections) Petitions Rules 2017 and authorities establishing the court's unfettered discretion to extend time, including Kalimbo Naveed v Boy Juma Boy, the court held the delay of two days was explained (service at an induction in Mombasa, unreachable chief agent) and that extension served the interest of justice without injustice to any party.
Legal principles established
#- A document is not rendered invalid merely because it was prepared or attested by an advocate without a current practising certificate, where the advocate is still on the roll; the illegality lies with the advocate, not the client
- An election court retains a discretion to extend time even where the prescribed period has expired, provided the other party suffers no prejudice and no statutory bar applies
Court orders
#- 1.The application dated 4th October, 2017 (seeking striking out of the 1st Respondent's response) is dismissed
- 2.The application dated 9th October, 2017 is partially allowed in terms of prayer (1): time is enlarged and the response and witness affidavits filed on 29th September, 2017 are deemed duly filed and properly on record
- 3.Prayer (2) of the application dated 9th October, 2017 (striking out the petition) is dismissed
- 4.No order as to costs
- Jurisdiction invoked
- Section 80 of the Elections Act; Elections (Parliamentary and County Elections) Petitions Rules, 2017, Rule 19(1); section 3A Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kiragu Muthura v Pius Njogu Kathuri & 2 others [2017] KEMC 87 (KLR)", Case Analysis (2017). Election Petition No 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/87/eng@2017-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.