Kongoti Ronald Anzelemo v Julius Oduor & 2 others [2017] KEMC 99 (KLR)
The bottom line
#A Kenyan election petition was struck out because the petitioner failed to pay a mandatory Kshs. 100,000 security deposit within the required ten days.
What this practically means
#Executive summary
#Key legal issues
#Mandatory nature of section 78 security for costs
Section 78 is mandatory; no further proceedings can be heard until the security is deposited, and a respondent may apply for dismissal under section 78(3).
The court reproduced section 78 in full and held that since the deposit is mandatory and the court cannot hear proceedings until it is resolved, an objection under section 78(3) requires the petitioner to explain satisfactorily why the petition should not be dismissed. It was not disputed that no deposit had been made within ten days of filing on 6/9/2017.
Adequacy of the petitioner's explanation for non-deposit
The explanation (ignorance of the requirement, advocate's failure to advise, party bureaucracy) was unsupported and unconvincing.
The court found it far-fetched that the petitioner, who appeared to have personally paid filing fees itemised alongside the security in the petition, would have been told of one and not the other. His advocates and party did not file affidavits corroborating his account, and he produced no evidence of prior inability to pay.
Delay and indolence of the petitioner
The petitioner's delay in moving the court to deposit the security justified striking out the petition.
The petition was filed on 6/9/2017; the petitioner never moved the court until the pre-trial mention of 12/10/2017, and only sought leave orally then, filing his response late. The court found ample time had been available and the indolence obvious, warranting striking out.
Whether Mr. Namatsi was properly on record
In the absence of a Notice of Change of Advocates and proof of service on the outgoing firm, the firm of Ashioya, Mogire and Nkatha remained properly on record, with Namatsi considered to act alongside them in the interests of justice.
The petitioner deponed that he had instructed Namatsi in place of Ashioya, Mogire and Nkatha, but Namatsi filed a Notice of Appointment indicating he acted alongside the old firm. Order 9 rules 5, 6 and 7 required a Notice of Change and service on the outgoing firm; absent that, the court treated the former firm as still on record, guided by the overriding objective.
Legal principles established
#- Where an objection under section 78(3) is filed, the burden shifts to the petitioner to satisfactorily explain why the petition should not be dismissed for want of security for costs
- Unexplained failure to deposit security for costs within the statutory period, coupled with delay, justifies striking out an election petition
Court orders
#- 1.The petition be and is hereby struck out
- 2.Kshs. 100,000/- awarded as total instruction fees for the petition and application to the 1st respondent
- 3.Kshs. 100,000/- awarded as total instruction fees for the petition to the 2nd and 3rd respondents
- 4.All other incidental costs to be assessed and the total costs certified
- 5.A certificate of determination in accordance with section 86(1) of the Elections Act to issue to the Independent Boundaries and Electoral Commission and the Speaker of the County Assembly, Kakamega County
- Jurisdiction invoked
- Elections Act No. 24 of 2011 (section 78) and the Election Petition (County and Parliamentary) Rules 2017; election court jurisdiction under the Elections Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kongoti Ronald Anzelemo v Julius Oduor & 2 others [2017] KEMC 99 (KLR)", Case Analysis (2017). Election Petition (Kakamega), filed 6/9/2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/99/eng@2017-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.