Yaite Philip Okoronon v Jakaa Gardy Odara & another [2017] KEMC 115 (KLR)

The court contrasted two schools of thought: one treating security for costs as substantive and jurisdiction-removing (Esposito Franco; Sitati J), the other treating it as procedural and extendable under Rule 20 of the Election Petition Rules, Article 259(9) of the Constitution and section 59 of the Interpretation and General Provisions Act. Aligning with the second school, it held the purpose of security is to protect respondents' costs, not to defeat petitions, and that the Constitution, statutes and rules should be interpreted liberally to reflect real-time societal realities.

The court weighed the petitioner's habitual default — late partial payment, breached consents and a broken promise to pay by 2 October 2017 — against the fact that Kshs. 60,000/- (60%) was already deposited, that respondents would suffer no prejudice from a top-up, and that forfeiture would enrich respondents at the petitioner's expense. Guided by Article 159(2)(d), Rule 4 of the Election Petition Rules and the Supreme Court's dictum in Raila Odinga v IEBC, it found substantive justice favoured allowing the petition to be heard on the merits.

The court noted that the respondents rushed to court without first issuing a notice to the petitioner to show cause why the petition should not be dismissed for want of security, and that the procedure under section 78(3) contemplates an objection being raised and removed before dismissal. While the court acknowledged it could refuse to proceed to hearing before full security was paid, it held the most judicious route was to allow enlargement of time, conditional on compliance with its orders.