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MagistrateDismissedNot stated in judgment (Notice of Motion dated 15th October, 2017 in a Petition dated 6th September, 2017)· [2017] KEMC 101 (KLR)

Kapusia Ole Saloni v James Kipas Langues & 2 others [2017] KEMC 101 (KLR)

Magistrates' Court (Election Court)
3 November 2017
2,717 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 court refused to strike out voter bribery and polling access allegations from a petition, ruling they must be tested fully at trial.

What this practically means

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Executive summary

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This is a ruling delivered on 3rd November 2017 by Senior Resident Magistrate H.M. Ng'ang'a in an election petition, on the 1st Respondent's (Hon. Kipas Lengues') Notice of Motion dated 15th October 2017 seeking to strike out paragraphs 3, 5, 6, 7, 8, 9 and 10 of the Petition dated 6th September 2017 and paragraphs 5, 13, 15, 16, 18, 19 and 20 of the Petitioner's supporting affidavit, with costs. The Applicant contended that the impugned paragraphs made baseless, unsubstantiated, scandalous and vexatious allegations of voter bribery, collusion by the 3rd Respondent's officers in denying the Petitioner's agents access to polling stations, and massive transfer of voters to Suswa ward against their wishes, and disclosed no reasonable cause of action. The Petitioner opposed, asserting the allegations were competently pleaded and supported by witness affidavits. The court framed a single issue: whether the impugned paragraphs were offensive, oppressive, scandalous, disclosed no reasonable cause of action and were an abuse of process. Applying the principle that striking out is a draconian, last-resort measure, and noting that further witness affidavits supported the pleaded allegations, the court found the paragraphs raised triable issues suitable for full trial with cross-examination. Following M'mbaya, it held allegations of election offences should be tested at trial. The application was found unmerited and dismissed with costs to the Petitioner.

Key legal issues

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01

Whether allegations of voter bribery in the Petition and supporting affidavit should be struck out

Holding

No - specific allegations of voter bribery supported by affidavit evidence ought to be tested at full trial

Reasoning

Bribery is an election offence which, if proved, may impeach the fairness and integrity of the voting exercise. The Petitioner pleaded specific allegations, including the 1st Respondent bribing voters with Kshs 500 along the queue at a specific polling station, and deponed to widespread voter bribery in his supporting affidavit. The court, guided by M'mbaya, held such determinations can only be made upon trial. The paragraphs were not scandalous or vexatious and the Respondents may controvert them at trial.

p. 4
02

Whether allegations of denial of access to polling stations should be struck out

Holding

No - further witness affidavits deponed to specific instances of denial of access, raising triable issues

Reasoning

Paragraphs 6, 7 and 8 of the Petition allege that the Petitioner's agents were denied access to polling stations, enabling election malpractices. Paragraph 7 identifies an agent denied access. The further witness affidavits of Parmers ole Muriongo, Kasankui ole Mututua, Joel Tuanei Partoip, Denis Kuitamet Omerae and Mukwe ole Lesalon aver to specific instances of denial of access. The court declined to expunge the paragraphs and the corresponding supporting affidavit paragraphs so the allegations could be fully adjudicated at trial.

p. 4
03

Whether allegations of massive transfer of voters to Suswa ward should be struck out

Holding

No - the allegations are supported by the supporting affidavit and a witness affidavit and raise triable issues

Reasoning

Paragraphs 9 and 10 of the Petition allege transfer of voters to Suswa ward without their consent, who were then influenced to vote for the 1st Respondent. Paragraph 20 of the supporting affidavit avers that some voters demanded to know why they had been transferred, and paragraph 7 of Mukwe ole Lesalon's affidavit contains similar averments. The pleadings raise triable issues, so the paragraphs were not struck out.

p. 5

Legal principles established

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  • Striking out pleadings is a draconian measure to be employed only as a last resort and in the clearest of cases
  • Election disputes are sui generis and courts should lean towards full adjudication of specific allegations of election malpractices

Court orders

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  1. 1.Application dismissed with costs to the Petitioner

Authorities

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Legislation

  • Evidence ActSections 2(2), 63(2), 107
  • Oaths and Statutory Declarations ActCAP 15 (generally)
  • Elections (Parliamentary and County Elections) Petition Rules 2017Rule 12
  • Civil Procedure RulesOrder 19, Rules 3 and 6
  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Elections ActSection 87; Part VI

Cases cited (7)

  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • Musikari Nazi Kombo v Moses Masika Wetangula & 2 others
    [2013] eKLR
  • Joseph v Ukay Estate Ltd Nbi HCCC No. 813 of 2004
  • Dev Surinder Kumar Bij v Agility Logistics Limited
    [2014] eKLR
  • Hosea Mundui Kiplagat v Sammy Komen Mwaita & 2 Others
    [2013] eKLR
  • D.T. Dobie Company (Kenya) Limited v Muchina
    [1982] KLR 1
  • Justus Gesito Mugali M'mbaya v Independent Electoral & Boundaries Commission & 2 others
    [2013] eKLR
Jurisdiction invoked
Elections (Parliamentary and County Elections) Petition Rules 2017, Rule 12, read with Sections 2(2), 63(2) and 107 of the Evidence Act and Order 19 Rules 3 and 6 of the Civil Procedure Rules

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, "Kapusia Ole Saloni v James Kipas Langues & 2 others [2017] KEMC 101 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 15th October, 2017 in a Petition dated 6th September, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/101/eng@2017-11-03

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