Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
MagistratePartially AllowedElection Petition (Suswa Ward Member of County Assembly) - Notice of Motion dated 9th October, 2017· [2017] KEMC 100 (KLR)

Kapusia Ole Saloni v James Kipas Langues & 2 others [2017] KEMC 100 (KLR)

Election Court (Magistrates' Court, exercising election petition jurisdiction)
19 October 2017
HNH.M. NG'ANG'A
2,495 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a ruling of the election court (H.M. Ng'ang'a, Senior Resident Magistrate) delivered on 19th October 2017 in an election petition challenging the election of the Member of County Assembly for Suswa Ward, Narok East, declared on 9th August 2017. The Petitioner, Kapusia Ole Saloni, moved the court by Notice of Motion dated 9th October 2017 under Rule 19 of the Elections (Parliamentary and County Elections) Petition Rules 2017 and Article 159 of the Constitution, seeking leave to admit five witness affidavits filed out of time and to have them deemed properly filed. The 2nd and 3rd Respondents opposed, arguing the affidavits should have been filed with the petition under Rule 12(4) and that admitting them would be a fishing expedition and prejudicial. The court framed one issue: whether leave should be granted to file the further affidavits. Reviewing Rules 12, 15(1)(h) and 19, and applying the Supreme Court's guidelines in Raila Odinga v IEBC and the High Court authorities, the court found the affidavits raised grounds already pleaded in the petition - denial of agents' access to polling stations, voter transfers and lack of transparency - and did not materially depart from or change the nature of the petition. No prejudice would arise since respondents would be given time to respond and the evidence would be tested by cross-examination. The application was allowed: leave granted, the affidavits deemed properly filed, respondents given 14 days to file responsive affidavits, no further extensions allowed, and costs of the application made costs in the cause.

Key legal issues

#
01

Whether witness affidavits filed out of time can be admitted under Rule 19 and Rule 15(1)(h) of the Election Petition Rules

Holding

Yes - the Court has jurisdiction to extend time and admit further affidavits where they amplify grounds already pleaded and cause no prejudice to respondents

Reasoning

Rule 12(4) requires witness affidavits to be filed with the petition, but Rule 19(1) empowers the election court to extend time to avoid injustice, and Rule 15(1)(h) allows pre-trial directions for further affidavits. The affidavits in issue raised grounds already pleaded (denial of agents' access, voter transfer, opaque conduct), so they did not materially depart from the petition. Respondents would get time to respond and the evidence would be tested by cross-examination, so no prejudice arose. Substantive justice under Article 159 and the overriding objective under Rule 4 favoured admission.

p. 5

Legal principles established

#
  • Admission of additional evidence in an election petition is discretionary, not an automatic right, and must not materially depart from grounds pleaded or prejudice respondents
  • Under Rule 12(4) of the Election Petition Rules, witness affidavits must be filed at the time of filing the petition

Court orders

#
  1. 1.Leave granted to the Petitioner to file further witness affidavits
  2. 2.The affidavits of PARMERS OLE MURIONGO, KASANKUI OLE MUTUTUA, JOEL TUANEI PARTOIP, DENIS KUITAMET OMERAE AND MUKWE OLE LESALON all sworn on 9th October, 2017 and filed on 10th October, 2017 deemed properly filed with the leave of the Court
  3. 3.Respondents granted corresponding leave to file and serve any further witness affidavits in response within 14 days of the date of the ruling
  4. 4.No further extension of time to file supplementary affidavits; matter to be fixed for hearing in view of strict timelines
  5. 5.Costs of the application to be costs in the cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 159; Article 159(2)(d) and (e)
  • Elections (Parliamentary and County Elections) Petition Rules 2017Rules 4(1)(2), 5(1), 12(1),(2),(3),(4),(9), 15(1)(e) and (h), 19(1),(2)

Cases cited (4)

  • Arthur Kibira Apungu & Another v Independent Electoral & Boundaries Commission & 2 Others
    [2013] eKLR
  • Joel Makori Onsando Kunga & Another v Independent Electoral and Boundaries Commission & 4 others
    [2017] eKLR
  • Wavinya Ndeti Vs IEBC and 4 Others (Machakos)
    [2013] eKLR
  • Raila Odinga v Independent Electoral and Boundaries Commission & 3 Others
    Supreme Court Petition No. 5 of 2013
Jurisdiction invoked
Article 159 of the Constitution and Rule 19 of the Elections (Parliamentary and County Elections) Petition Rules 2017

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kapusia Ole Saloni v James Kipas Langues & 2 others [2017] KEMC 100 (KLR)", Case Analysis (2017). Election Petition (Suswa Ward Member of County Assembly) - Notice of Motion dated 9th October, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/100/eng@2017-10-19

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