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MagistrateAllowedNot stated (Election Petition, Butali Law Courts)· [2017] KEMC 110 (KLR)

Walter Shiundu Murunga v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 110 (KLR)

Chief Magistrate's Court (Election Petition), Butali
6 October 2017
EMEvans W. Muleka
553 words in judgment
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The bottom line

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A Kenyan court allowed a late deposit of security in an election petition, but only because the petitioner proved he had the money ready that day.

What this practically means

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Executive summary

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This ruling of the Senior Resident Magistrate at Butali, Evans W. Muleka, determined a notice of motion dated under Article 159 of the Constitution and Rules 13 and 19 of the Elections (Parliamentary and County Elections) Petition Rules, 2017, in which the petitioner, Walter Shiundu Murunga, sought an extension of time to deposit security for costs of Kshs.100,000 as required under Section 78(2)(c) of the Elections Act. The court restated the twin purposes of the security deposit: deterring frivolous and vexatious election petitions and compensating respondents who successfully defend hopeless petitions, citing Esposito Franco v Amason Jeffah Kingi and Said Buya Hiribae v Hassan Dukicha Abdi. It held that payment of the deposit is not a mere procedural formality excusable at judicial discretion, applying the Said Buya Hiribae authority. The petitioner had filed his petition within the statutory 28 days but failed to deposit security within 10 days, the period lapsing on 16th September 2017; informal extensions had already accrued. Respondents opposed the oral application. However, paragraph 8 of the petitioner's supporting affidavit and its annexture demonstrated he had funds available. Ruling under Section 78(3), the court allowed the petitioner to deposit the security before 2:00pm on 6th October 2017, when the matter would be mentioned and parties directed to take a pre-trial date, with all other applications to be heard there. No costs order was made.

Key legal issues

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01

Whether extension of time to deposit security for costs could be granted

Holding

Extension granted under Section 78(3), conditioned on deposit the same day, since the petitioner demonstrated he had funds.

Reasoning

The court noted the statutory 10-day period lapsed on 16th September 2017 and informal extensions had already occurred. Paragraph 8 of the supporting affidavit and its annexture showed the petitioner had funds. Balancing the mandatory nature of the deposit against the petitioner's demonstrated ability to pay, the court exercised its power under Section 78(3) to allow deposit the same day before mention.

p. 3

Legal principles established

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  • Deposit of security for costs in an election petition is an essential requirement, not excusable at judicial discretion.
  • Security for costs exists to deter frivolous election petitions and compensate respondents defending hopeless petitions.

Court orders

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  1. 1.The petitioner is granted extension of time and ordered to deposit his security for costs before 2:00pm on 6th October 2017
  2. 2.The matter to be mentioned at 2:00pm the same day, when parties will take a date for pre-trial
  3. 3.All other subsequent applications to be heard and determined at pre-trial
Jurisdiction invoked
Article 159 of the Constitution; Rules 13 & 19 of the Elections (Parliamentary and County Elections) Petition Rules, 2017; Section 78(3) of 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, "Walter Shiundu Murunga v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 110 (KLR)", Case Analysis (2017). Not stated (Election Petition, Butali Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/110/eng@2017-10-06

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