Justine Chemtai v Winnie Atieno Nyambok & 3 others [2017] KEMC 92 (KLR)
The bottom line
#A Kenyan election court ruled that missed deadlines for paying petition security cannot be extended, and dismissed the candidate's late attempt to save her case.
What this practically means
#Executive summary
#Key legal issues
#Whether the court can set aside the alleged notice of withdrawal and consent
No such consent or order was recorded; the court had earlier disallowed the oral withdrawal and the petitioner has abandoned the withdrawal, so there is nothing to set aside
The record shows that on 16.10.2017 counsel orally applied to withdraw the petition; no consent was recorded. The court reserved ruling and on 19.10.2017 disallowed the oral withdrawal, directing a formal application within 5 days. The petitioner instead abandoned the withdrawal. The court noted it has no jurisdiction to force a party to withdraw a petition and would deal with the petition under the law and rules governing petitions.
Whether the court has jurisdiction to extend time to furnish security for costs
It does not; neither the Elections Act nor the 2017 Petition Rules confer such a power, and the Kisii decisions to that effect bind this court
Rule 11(1) of the Elections (Parliamentary and County) Petition Rules 2017 requires deposit of security within 10 days of filing, and section 78 of the Elections Act mirrors this. Citing Fatuma Zainabu Mohammed (Kisii E.P. No. 6 of 2013) and Evans Nyambane Zedekiah (Kisii E.P. No. 10 of 2013), the court held the rules cannot legislate a power of extension not authorised by the statute under which they were made.
Whether, assuming jurisdiction, the applicant merits extension of time
No; she gave no satisfactory explanation for a delay of over 53 days and displayed a flippant, afterthought-driven approach
Applying the Salat principles (reason for delay, prejudice, undue delay, public interest), the court found the petitioner gave no explanation why her advocate never sought extension after appointment on 6.10.2017, failed to act on pending preliminary issues, and instead attempted withdrawal. A party seeking extension bears the burden of laying a basis to the satisfaction of the court.
Legal principles established
#- There is no express provision in the Elections Act for enlargement of time to deposit security for costs, so the court has no power to extend time for making the deposit
- Extension of time is an equitable remedy available only to a deserving party, on whom the burden lies to lay a basis to the satisfaction of the court
Court orders
#- 1.Declaration that no orders were made on 16.10.2017 or 30.10.2017 and therefore there is nothing to set aside
- 2.Dismissal of the notice of motion dated 30.10.2017
- Jurisdiction invoked
- Elections Act and Elections (Parliamentary and County) Petition Rules 2017, election petition jurisdiction over county assembly seats
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justine Chemtai v Winnie Atieno Nyambok & 3 others [2017] KEMC 92 (KLR)", Case Analysis (2017). Kisii/Kimilili Election Petition (No. as per record not stated; Notice of Motion dated 30.10.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/92/eng@2017-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.