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MagistrateStruck OutNot stated in judgment· [2017] KEMC 113 (KLR)

Irene Jerop Cheboi & 2 others v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 113 (KLR)

Chief Magistrates' Court (Election Petition)
24 October 2017
BMB Mararo
623 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenya court struck out an election petition over nominated MCAs because the petitioners missed mandatory deadlines for serving papers and paying security costs.

What this practically means

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Executive summary

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Three petitioners, Irene Jerop Cheboi, Catherine Jebakura Lekuta and Elizabeth Aemun Nanan, petitioned against the Independent Electoral and Boundaries Commission, the Jubilee Party and the Clerk of the County Assembly of Nakuru over the nomination of nominated Members of the County Assembly. They sought a permanent injunction stopping the swearing in of the nominated MCAs listed in the Gazette Notice published on 28/8/2017, a declaration that the nomination process and the second and third shortlists were irregular and discriminatory, a declaration that the Gazette Notice contravened their constitutional rights as party members and special interest groups, and costs. They complained that their names, which appeared on the initial harmonised shortlist, were dropped from subsequent lists, that minority communities and gender balance were ignored, and that wards which already had nominated MCAs were favoured. The 1st Respondent filed a preliminary objection dated 16/10/2017 contending that the Petition, filed on 5/9/2017, had not been served within 7 days as required by the Election Petition Rules, and that the Petitioners had failed to deposit security for costs of Kshs 100,000 within 10 days of filing as required by Rule 13. Relying on Mombasa HC Election Petition No 9 of 2017 and Kisii HC Election Petition No 10 of 2013, where compliance with the rules was held mandatory, the court found the Petitioners had not attempted to explain the non-compliance and struck out the Petition with costs to the 1st Respondent on 24 October 2017.

Key legal issues

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01

Whether failure to serve the Petition within 7 days of filing warrants striking it out

Holding

Yes; the service requirement under the Election Petition Rules is mandatory and the Petitioners made no attempt to explain the non-compliance

Reasoning

The 1st Respondent raised a preliminary objection noting that the Petition filed on 5/9/2017 had not been served by 13/9/2017 as required by the rules. Relying on Mombasa HC Election Petition No 9 of 2017 and Kisii HC Election Petition No 10 of 2013, where it was held that compliance with the rules was mandatory, the court found no explanation for the anomaly and struck out the Petition.

p. 3
02

Whether failure to deposit security for costs of Kshs 100,000 within 10 days of filing warrants striking out the Petition

Holding

Yes; the deposit requirement under Rule 13 of the Election Petition Rules 2017 was not met, contributing to the striking out of the Petition

Reasoning

The preliminary objection also cited the Petitioner's failure to deposit the security for costs within 10 days of filing as required by Rule 13 of the Election Petition Rules 2017. Together with the failure of service, this non-compliance led the court to strike out the Petition with costs to the 1st Respondent.

p. 3

Legal principles established

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  • Compliance with the Election Petition Rules, including service within 7 days of filing and deposit of security for costs within 10 days, is mandatory and non-compliance justifies striking out the petition

Court orders

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  1. 1.The Petition filed on 5/9/2017 is struck out
  2. 2.Costs of the Petition to the 1st Respondent

Authorities

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Legislation

  • Election Petitions RulesRule 10 (service within 7 days of filing)
  • Election Petitions Rules 2017Rule 13 (security for costs of Kshs 100,000 within 10 days of filing)

Cases cited (2)

  • Mombasa HC Election Petition No 9 of 2017
  • Kisii HC Election Petition No 10 of 2013
Jurisdiction invoked
Election Petitions Rules 2017 (magistrates' court election petition jurisdiction over nominated Member of County Assembly)

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, "Irene Jerop Cheboi & 2 others v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 113 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/113/eng@2017-10-24

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