Joseph Obiri Kenyaga v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 91 (KLR)
The bottom line
#A Kenyan election court refused to kill a petition filed late for security costs, giving the petitioner days to pay or lose the case.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to deposit security for costs under section 78 of the Elections Act
The court has jurisdiction to extend time; since the Petitioner applied for extension and showed intention to comply, the failure will not ground dismissal
The court distinguished Moses Saisi and Kumbatha Naomi Cidi, where petitioners showed no intention to comply, and followed later High Court decisions (Patrick Ngeta Kimanzi, Charles Ong'ondo Were, Fatuma Zainabu Mohamed) holding that the court may extend time where the petitioner applies for extension and no prejudice is occasioned to respondents. The deposit also cushions respondents against non-payment of costs.
Whether the petition was filed outside the 28-day time limit
The petition was filed within time; Form 36B shows results were declared on 11th August 2017, and counting from 12th August the 28 days expired on 8th September 2017, the filing date
The court treated the dated Form 36B (11th August 2017) as the reliable evidence of the date of declaration, noting no certificate of election was annexed and that the Returning Officer's deposition of 10th August contradicted her own form. Applying section 57 of the Interpretation and General Provisions Act, the day of declaration is excluded, so filing on 8th September 2017 was within the constitutional limit.
Whether the petition was served out of the 15-day period
The ground failed for want of proof; the 3rd Respondent did not state when she was served or how she learned of the petition
The court held that whoever alleges must prove under section 109 of the Evidence Act. The 3rd Respondent's affidavits and reply were silent on the date of service, so she failed to discharge the burden of proving service outside the fifteen days prescribed by Rule 10(1) of the Petitions Rules, 2017.
Legal principles established
#- An election court may extend time for deposit of security for costs where the petitioner has applied for extension and shows intention to comply; failure to deposit in time is not in such circumstances fatal
- In computing time under a written law, the day of the event is excluded, so 28 days from declaration of results on 11th August 2017 ended on 8th September 2017
- The party alleging late service bears the burden of proving it
Court orders
#- 1.The 3rd Respondent's application dated 10th October, 2017 to dismiss the petition is dismissed
- 2.The Petitioner's application dated 11th October, 2017 for extension of time to deposit security for costs is allowed
- 3.The 3rd Respondent's objection/grounds of opposition dated 13th October, 2017 deemed duly filed and properly on record, and the documents to be remitted to Milimani Magistrate's Commercial Court for appropriate stamping
- 4.The Petitioner shall deposit security for costs of KShs 100,000 in full on or before close of business at 5.00 p.m. on Friday, 27th October, 2017, failing which the petition shall stand struck out, to be mentioned on Monday, 30th October, 2017 at 9.30 a.m. to confirm the order took effect
- 5.Costs of both applications shall be in the cause
- Jurisdiction invoked
- Article 87(2), Constitution of Kenya, 2010; sections 76 and 78 of the Elections Act, 2011 (election court jurisdiction over county assembly election petitions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Obiri Kenyaga v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 91 (KLR)", Case Analysis (2017). Election Petition, Nairobi South Ward, Starehe Constituency (2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/91/eng@2017-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.