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MagistrateStruck OutElection Petition (Kakamega), filed 6/9/2017 (number not stated in judgment)· [2017] KEMC 99 (KLR)

Kongoti Ronald Anzelemo v Julius Oduor & 2 others [2017] KEMC 99 (KLR)

Magistrates' Court (Election Court), Kakamega
23 October 2017
2,670 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 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

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Executive summary

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The 1st respondent filed a Notice of Motion dated 25/9/2017 and a preliminary objection seeking dismissal or striking out of the petitioner's election petition challenging an election for a member of a county assembly, for failure to deposit the security for costs of Kshs. 100,000 within ten days of filing as required by section 78(1) and (2) of the Elections Act No. 24 of 2011, and for non-compliance with rules 11 and 12 of the Election Petition (County and Parliamentary) Rules 2017. The petitioner, in a replying affidavit, pleaded ignorance of the requirement, blamed his then advocates (Ashioya, Mogire & Nkatha) and his party, Amani National Congress, for bureaucracy, and sought leave to deposit the security, which he said he had now raised. Counsel for the 1st respondent submitted that section 78 was mandatory, that want of deposit made the petition incomplete, that the delay was unexplained and in bad faith, and that Article 159 could not rescue an indolent litigant. The court first resolved a procedural issue, holding that in the absence of a Notice of Change of Advocates under Order 9, the former firm remained on record with Mr. Namatsi acting alongside it. On the merits, the court found section 78 mandatory, that no deposit had been made, and that the burden lay on the petitioner to explain satisfactorily. It found the explanation far-fetched and unsupported by affidavit evidence from his advocates or party, and found the petitioner indolent and guilty of unexplained delay. The petition was struck out at the preliminary stage, with costs of the petition and application awarded to the respondents, instruction fees of Kshs. 100,000 each for the 1st and for the 2nd and 3rd respondents, other incidental costs to be assessed, and a certificate of determination under section 86(1) to issue to the IEBC and the Speaker of the County Assembly, Kakamega County.

Key legal issues

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01

Mandatory nature of section 78 security for costs

Holding

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).

Reasoning

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.

p. 3
02

Adequacy of the petitioner's explanation for non-deposit

Holding

The explanation (ignorance of the requirement, advocate's failure to advise, party bureaucracy) was unsupported and unconvincing.

Reasoning

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.

p. 4
03

Delay and indolence of the petitioner

Holding

The petitioner's delay in moving the court to deposit the security justified striking out the petition.

Reasoning

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.

p. 4
04

Whether Mr. Namatsi was properly on record

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The petition be and is hereby struck out
  2. 2.Kshs. 100,000/- awarded as total instruction fees for the petition and application to the 1st respondent
  3. 3.Kshs. 100,000/- awarded as total instruction fees for the petition to the 2nd and 3rd respondents
  4. 4.All other incidental costs to be assessed and the total costs certified
  5. 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

Authorities

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Legislation

  • Elections Actsection 78(1), (2), (3)
  • Elections Actsection 84
  • Elections Actsection 86(1)
  • Election Petition (County and Parliamentary) Rules 2017rules 11 and 12
  • Election Petition (County and Parliamentary) Rules 2017rule 19
  • Election Petition (County and Parliamentary) Rules 2017rule 36(1)
  • Civil Procedure Actsections 1A and 1B
  • Civil Procedure RulesOrder 9 rules 5, 6 and 7
  • Constitution of Kenya 2010Articles 38 and 48
  • Constitution of Kenya 2010Article 159

Cases cited (6)

  • Rotich Samuel Kimutai vs. Ezekiel Lenyongopeta and 2 others
    (2005) eKLR
  • Esposito Franco vs. Amason Kingi Jeffa and two others
    (2010) eKLR
  • Fatuma Zainab Mohamed vs Ghati Dennitah and 10 others
    Election Petition No. 6 of 2013
  • Said Buya Hiribae vs. Hassan Dukicha Abdi & 2 others
    Mombasa Election Petition no. 7 of 2013
  • Kumbatha Naomi Cidi vs. County Returning Officer, Kilifi & 3 others
    Election Petition (Malindi) no 13 of 2013
  • Simion Kiprop Sang vs. Zakayo K. Cheruiyot & 2 Others
    Nairobi Election Petition no 1 of 2013
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

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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, "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.