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MagistrateDismissedElection Petition No. 4 of 2017 (formerly Chief Magistrate's Court at Migori Election Petition No. 4 of 2017)· [2017] KEMC 88 (KLR)

Peter Odhiambo Olimo v Independent Electoral & Boundaries Commission & another [2017] KEMC 88 (KLR)

Senior Principal Magistrate's Court at Kehancha

8 November 2017

PMP. N. Maina

1,248 words in judgment

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The bottom line

A Kenyan court dismissed an election petition because the candidate and his lawyers repeatedly failed to show up and follow court rules.

What this practically means

Executive summary

The petitioner, an ANC candidate for the Member of County Assembly seat for Macalder Kanyarwanda Ward in Nyatike Constituency, challenged the results of the 8 August 2017 elections in which the 2nd defendant was declared winner on 16 August 2017. The petition, initially filed at the Chief Magistrate's Court at Migori, was transferred to the Senior Principal Magistrate's Court at Kehancha on designation by the Chief Justice under Section 75 of the Elections Act. At a pre-trial conference on 24 October 2017, counsel indicated an intention to withdraw the petition, and the court gave directions requiring an application in compliance with Rules 21, 22 and 23 of the Election Petition Rules, 2017, including publication of the intention to withdraw in a newspaper of national circulation. On the subsequent directions date the petitioner and his advocates again failed to appear. The 2nd respondent's counsel applied for dismissal of the petition, noting the petitioner's non-compliance with Rule 22(2) and non-attendance. The court found a clear lack of diligence, noted that only half the statutory security deposit had been paid, and observed that the strict timelines of election law prevented the matter being kept active indefinitely. Following Emily Nyabuto v IEBC, the court dismissed the petition for non-attendance, awarded the 2nd respondent Kshs 50,000/= all inclusive in costs payable from the security deposit, and made no costs orders against the 1st and 3rd respondents who also did not appear.

Key legal issues

Dismissal of an election petition for non-attendance and non-compliance

Holding

The petition was dismissed because the petitioner and his advocates repeatedly failed to appear and the petitioner failed to comply with the court's directions and the Election Petition Rules, including the full statutory security deposit

Reasoning

The court noted the petitioner filed the petition, deposited only half the statutory security, failed to publish notice of withdrawal as directed, and did not appear on the directions date. Given the strict timelines governing election petitions, the court could not keep the matter active indefinitely and found the 2nd respondent's application for dismissal meritorious, following Majanja J in Emily Nyabuto v IEBC.

p. 3

Legal principles established

A court has inherent jurisdiction to dismiss an election petition where the petitioner and his advocates fail to attend, given the strict statutory timelines

Court orders

1.The petition is dismissed for the non-attendance of the petitioner and his advocates
2.The 2nd respondent is awarded Kshs 50,000/= all inclusive in costs, payable out of the security deposit held in court
3.No orders as to costs in relation to the 1st and 3rd respondents

Authorities

Legislation

Elections ActSection 75
Elections (Parliamentary and County Elections) Petition Rules, 2017Rules 15, 21, 22, 22(2), 23

Cases cited (1)

Emily Nyabuto v IEBC and 2 others
unreported

Jurisdiction invoked: Section 75 of the Elections Act (designation by the Chief Justice); Elections (Parliamentary and County Elections) Petition Rules, 2017

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Peter Odhiambo Olimo v Independent Electoral & Boundaries Commission & another [2017] KEMC 88 (KLR)", Case Analysis (2017). Election Petition No. 4 of 2017 (formerly Chief Magistrate's Court at Migori Election Petition No. 4 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/88/eng@2017-11-08

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