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MagistrateDismissedElection Petition filed 8th September 2017 (Milimani)· [2017] KEMC 90 (KLR)

Abdi Muhyadin Abdi v Independent Electoral and Boundaries Commission (IEBC) & 2 others [2017] KEMC 90 (KLR)

Resident Magistrates' Court (Election Court)
2 November 2017
MMM. Mutuku
4,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan election petition dismissed because it was filed one day late and without the required Kshs.100,000 security deposit — deadlines in election cases are absolute.

What this practically means

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Executive summary

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This is a first-instance ruling of a Resident Magistrates' Court sitting as an election court at Milimani in an election petition by Abdi Muhyadin Abdi challenging the election of Abdullahi Mohamed Buthul as Member of County Assembly for Sangailu Ward, Ijaara Constituency, in the 8th August 2017 general elections. The petitioner sought declarations that Section 83 of the Elections Act is unconstitutional, that the 2nd Respondent committed electoral bribery and contravened Section 26 of the Electoral Act by participating in a harambee, that his election was void, and sought a certificate of election for himself or, alternatively, fresh elections. At pre-trial, the petitioner's advocate lost contact with the client and sought to cease acting. The 2nd Respondent filed a notice of motion dated 27/9/2017 seeking dismissal on two grounds: the petition was filed outside the 28-day constitutional timeline under Article 87(2), and no security for costs of Kshs.100,000/= was deposited as required by Section 78 of the Elections Act. Evidence showed results were declared on 9/8/2017 (Form 36(c) signed by the Returning Officer), so the 28 days expired on 7/9/2017; the petition, filed 8/9/2017, was out of time by one day. Relying on the Supreme Court's decision in Leminken Aramat, the court held the constitutional timeline defines its jurisdiction and Article 159 cannot cure non-compliance. Non-deposit of security was an independent, substantive bar. The court dismissed the petition with costs to all respondents, allowed the 2nd Respondent's motion, disallowed the advocate's application to cease acting (it was wrongly brought under the Civil Procedure Act, which does not govern election petitions), and refused to order the advocate to pay costs personally, there being no evidence of unprofessional conduct.

Key legal issues

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01

Jurisdiction where petition filed outside constitutional timelines

Holding

The court lacks jurisdiction; the 28-day period expired on 7/9/2017 while the petition was filed on 8/9/2017, results having been declared on 9/8/2017 as evidenced by Form 36(c) signed by the Returning Officer.

Reasoning

Article 87(2) requires election petitions (other than presidential) to be filed within 28 days of declaration of results. Applying Section 57 of the Interpretation and General Provisions Act, time began running on 10/8/2017 and expired on 7/9/2017. Following the Supreme Court in Lemanken Aramat, breach of the strict constitutional time scheme removes the dispute from the court's jurisdiction and Article 159 does not apply. The petitioner's omission of the certificate of election evidenced an attempt to conceal the declaration date.

p. 6
02

Jurisdiction where no security for costs deposited

Holding

Failure to deposit Kshs.100,000/= security for costs under Section 78 of the Elections Act is a further independent ground for dismissal.

Reasoning

Section 78 requires deposit within 10 days of presentation of the petition; Section 78(3) bars further proceedings where no deposit is made. The court found it a matter of general knowledge and undisputed that no deposit was ever made, and no extension was sought. Following Evans Nyambaso and the Court of Appeal in Nairobi Civil Appeal No. 273 of 2003, the requirement is peremptory and not a waivable irregularity. The petitioner, absent throughout, was described as a busy body to be kept out of the proceedings.

p. 7
03

Advocate's application to cease acting

Holding

The application fails because it is anchored on the Civil Procedure Act, which does not apply to election petitions, and because allowing withdrawal would prejudice the respondents and delay a time-bound petition.

Reasoning

The Elections Act contains no provision governing advocates' withdrawal in election petitions. Rule 5(2) of the Elections (Parliamentary and County Elections) Petition Rules 2017 obliges parties and advocates to assist the court in furthering just, expeditious, proportionate and affordable resolution. Service by advertisement would cause further delay and expense within the strict six-month timeline. The application was accordingly disallowed.

p. 8

Legal principles established

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  • The constitutional 28-day period for filing election petitions is a limitation period that opens and defines the jurisdiction of the election court; Article 159 does not save non-compliance.
  • Deposit of security for costs is a substantive requirement underpinning the court's jurisdiction; failure to deposit within the statutory period means no further proceedings shall be heard.
  • In computing the 28 days, time runs from the day after declaration of results, per Section 57 of the Interpretation and General Provisions Act.

Court orders

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  1. 1.That the court lacks jurisdiction to hear and determine the petition dated 8/9/2017, having been filed outside the constitutional timelines
  2. 2.That the 2nd Respondent's Notice of Motion dated 27/9/2017 is allowed, costs to be borne by the petitioner
  3. 3.That the petitioner's petition dated 8th September 2017 is dismissed with costs to the 1st, 2nd and 3rd Respondents
  4. 4.The application by the firm of Mogaka Musyoki & Co. Advocates to cease from acting is disallowed
Jurisdiction invoked
Article 87(2) of the Constitution; Section 75(1)(a) of the Elections Act (Resident Magistrates' Court designated by the Chief Justice)

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, "Abdi Muhyadin Abdi v Independent Electoral and Boundaries Commission (IEBC) & 2 others [2017] KEMC 90 (KLR)", Case Analysis (2017). Election Petition filed 8th September 2017 (Milimani). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/90/eng@2017-11-02

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