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MagistrateDismissedElection Petition (Thiba Ward), filed 6th September 2017; related Civil Appeal No. 44 of 2017· [2017] KEMC 89 (KLR)

Joseph Kiragu Muthura v Pius Njogu Kathuri & 2 others [2017] KEMC 89 (KLR)

Magistrates' Court
13 November 2017
SSS.M.S. Soita
459 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause an election petition because the losing candidate waited too long and failed to file a proper formal application.

What this practically means

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Executive summary

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At a mention fixed for directions on the scrutiny and recount of votes cast in all polling stations within Thiba Ward, the 1st Respondent made an oral application for stay of proceedings pending directions in Civil Appeal No. 44 of 2017, an appeal against this court's interlocutory ruling of 27th October 2017. The petitioner opposed, arguing the application was made under unknown legal provisions and should have been made on 27th October 2017 under Order 42 Rule 6 of the Civil Procedure Rules when the ruling was delivered. The 2nd and 3rd Respondents did not oppose, urging a mention in two weeks and noting that oral evidence had been dispensed with by consent. The Chief Magistrate held that while Order 42 Rule 6(5) permits an informal application for stay immediately following a judgment or ruling, the appropriate time for such an oral application was when the ruling was delivered; the 1st Respondent should thereafter have made a formal application. Emphasising that this was an election petition with strict time constraints - the petition having been filed on 6th September 2017 - and invoking Rule 4 of the Petition Rules and section 75 of the Elections Act requiring determination within six months, the court held that delay must be discouraged. The informal application for stay was refused, dates were directed to be taken for the scrutiny and recount of votes, and there was no order as to costs.

Key legal issues

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01

Whether an informal application for stay of proceedings made at a later mention could be granted

Holding

The application could not be granted; the proper time for an informal oral application was when the ruling was delivered on 27th October 2017, and thereafter a formal application was required

Reasoning

Order 42 Rule 6(5) of the Civil Procedure Rules permits an informal application for stay immediately following delivery of a judgment or ruling. The 1st Respondent did not move the court at that time and instead made an oral application at a later mention, unsupported by any identified legal provision. Given the six-month statutory timeline under section 75 of the Elections Act and the expeditious-resolution objective of the Petition Rules, delay must be discouraged and the stay could not issue.

p. 2
02

How the court should proceed on scrutiny and recount of votes in Thiba Ward

Holding

The court directed that dates be taken for the scrutiny and recount of votes cast in all polling stations within Thiba Ward

Reasoning

Since the stay was refused, the purpose of the mention - taking directions on scrutiny and recount - proceeded. Oral evidence had been dispensed with by consent, so the time constraint was not demanding, and the court moved the petition forward by directing that dates be fixed for the scrutiny and recount exercise.

p. 2

Legal principles established

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  • An oral (informal) application for stay of execution or proceedings should properly be made immediately following delivery of the judgment or ruling; a party who fails to do so must make a formal application
  • Election petitions must be heard and determined within six months and any delay must be discouraged

Court orders

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  1. 1.The informal application for stay of proceedings is refused
  2. 2.Dates to be taken for the exercise of scrutiny and recount of votes cast in Thiba Ward
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(5)
  • Elections (Parliamentary and County Elections) Petition RulesRule 4
  • Elections Actsection 75
Jurisdiction invoked
Elections Act, section 75; Elections (Parliamentary and County Elections) Petition Rules

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, "Joseph Kiragu Muthura v Pius Njogu Kathuri & 2 others [2017] KEMC 89 (KLR)", Case Analysis (2017). Election Petition (Thiba Ward), filed 6th September 2017; related Civil Appeal No. 44 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/89/eng@2017-11-13

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