John Osumba Olum v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 106 (KLR)

Magistrates' Court (Election Court), Winam

13 October 2017

BKBernard Kasavuli

1,787 words in judgment

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The bottom line

A Kenyan election court refused to strike out an MCA petition over copy-and-paste typos, prioritising substance over technicalities.

What this practically means

Executive summary

This was a ruling on preliminary applications in an election petition filed on 6 September 2017 by a losing candidate for Member of County Assembly, Kolwa East Ward, in the 8 August 2017 general elections. The 1st and 2nd respondents filed a joint response and a Notice of Motion dated 29 September 2017 seeking striking out of the petition, arguing that the petitioner's pleadings contravened Rule 7(4) of the Elections (Parliamentary and County Elections) Petition Rules, 2017, that the petition repeatedly referred to South West Kisumu Ward (a ward not in issue), and that the petitioner's affidavits and those of his agents failed to disclose the sources of the deponents' information or belief. The 3rd respondent filed a notice of preliminary objection dated 19 September 2017 contending that the court could not exercise jurisdiction over non-existent wards. The petitioner, through counsel, attributed the erroneous ward references to typographical errors occasioned by copy-and-paste drafting, relying on the Judiciary Bench Book on Electoral Disputes Resolution, and submitted that no prejudice had been demonstrated. The court framed a single issue: whether the references to wards other than Kolwa East Ward were fatally defective. It found the errors typographical and curable, noted that no respondent demonstrated prejudice and none cited binding authority that the errors were fatal, and held the affidavit complaints were anchored on form rather than substance. Guided by Article 159(2)(d), the court declined to strike out the petition and dismissed both applications, making no orders as to costs since the petitioner did not pursue them.

Key legal issues

Whether misnaming other wards in the petition and supporting affidavits was fatal

Holding

No – the errors were typographical, curable and caused no demonstrated prejudice; the petition's heading identified Kolwa East Ward correctly and the substantive components of Rule 7 were complied with

Reasoning

The respondents produced no binding authority that the errors were fatal. The court examined the petition, found it related on its face to the Kolwa East Ward election, accepted the copy-and-paste explanation, noted that no prejudice was pleaded by any respondent, and held the errors were curable by amendment or particulars. Striking out on such grounds would offend Article 159(2)(d).

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Whether the affidavits were fatally defective for non-disclosure of sources of information or belief

Holding

No – the complaint went to form, not substance, and could not sustain the objection

Reasoning

The court held that the failure of deponents to state whether their affidavits were sworn on knowledge, information or belief was a complaint of form rather than substance and therefore no basis existed for striking out the petition on that ground.

p. 3

Legal principles established

An election court may allow amendments to correct inadvertent errors and omissions at any stage of electoral dispute resolution proceedings where the amendments would not occasion prejudice to any party
An election petition should not be struck out for typographical errors that do not affect the substratum of the petition or cause prejudice, per Article 159(2)(d)

Court orders

1.The Notice of Motion dated 29/9/2017 by the 1st and 2nd respondents is dismissed
2.The notice of preliminary objection dated 19/9/2017 by the 3rd respondent is dismissed
3.No orders as to costs

Authorities

Legislation

Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 7 (incl. Rule 7(4))
Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 4
Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 5 (incl. Rule 5(1))
Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 15(1)
Constitution of Kenya, 2010Article 159(2)(d)

Jurisdiction invoked: Elections (Parliamentary and County Elections) Petition Rules, 2017; Article 159(2)(d) of the Constitution

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "John Osumba Olum v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 106 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/106/eng@2017-10-13

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