Jane Njeri Kamande v Anthony Jomo Maina & 3 others [2017] KEMC 117 (KLR)
The bottom line
#A Kenyan election court ruled that once a returning officer declares results, challenges belong in court, and late petition responses can be accepted.
What this practically means
#Executive summary
#Key legal issues
#Definition and scope of a preliminary objection
A preliminary objection must be a pure point of law arising on agreed facts, capable of disposing of the suit; the Mukisa Biscuits definition was restated
The court adopted the classical formulation in Mukisa Biscuits and the modern restatement by Judge Mwita in John Musakali, requiring that the objection arise from pleadings on undisputed facts and have the potential to dispose of the suit without trial.
Whether the court had jurisdiction over the petition or whether it concerned a pre-election nomination dispute for the IEBC
The court had jurisdiction; the petition was properly filed as an election petition before the magistrate's court, and the precedent of Judge P.J.O. Otieno in Michael Kanja Kagori supported the magistrates' court as the right forum
Relying on Moses Mwicigi and Hassan Ali Joho, the court held that once the returning officer declared the 1st Respondent winner and issued the certificate, jurisdiction shifted from the IEBC to the election court. Distinguishing Republic v. IEBC ex parte Chebet (a judicial review nomination matter) and Josiah Taraiya Ole Kores (pre-election eligibility), the dispute was ripe for hearing on the merits.
Whether to extend time for the 1st Respondent to file his response out of time
Extension granted; the draft response deemed filed, applying Article 159(2)(d), Rules 4, 5 and 19(1) of the 2017 Petition Rules, and Bashir Haji Abdullahi
Although the 1st Respondent took over two weeks after the High Court's dismissal of the Mombasa petition to act, locking him out on a technicality would cause undue hardship. Rule 19(1) empowers the court to extend even expired periods, and Article 159(2)(d) and the Supreme Court's approach in Moses Mwicigi favour substantive justice over procedural default.
Legal principles established
#- Jurisdiction over electoral disputes shifts from the IEBC to the election court once the returning officer has declared the result and issued the certificate; the appropriate challenge thereafter is by election petition
- An election court may extend time for filing responses even after expiry of the prescribed period, to prevent injustice, under rule 19(1) of the Elections (Parliamentary and County Elections) Petition Rules, 2017
- Procedural technicalities should not be allowed to defeat substantive justice in election petitions, per Article 159(2)(d) of the Constitution
Court orders
#- 1.The 2nd Respondent's preliminary objection is dismissed
- 2.The time for filing a response to the petition is extended
- 3.The draft response attached to the Notice of Motion filed on September 27, 2017 is deemed as filed
- 4.The 1st Respondent's response, if not served, to be served within 7 days from delivery of the ruling
- 5.Costs are in the cause
- Jurisdiction invoked
- Section 75(1A) of the Elections Act - a question as to the validity of election of a member of a county assembly heard by the Resident Magistrate's Court designated by the Chief Justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Njeri Kamande v Anthony Jomo Maina & 3 others [2017] KEMC 117 (KLR)", Case Analysis (2017). Election Petition No 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/117/eng@2017-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.