Jane Naicar Eshuchi v Maurice Sakwa & 2 others [2017] KEMC 118 (KLR)
The bottom line
#A Kenyan election petition was struck out because the petitioner failed to deposit security for costs within the legal deadline — a private agreement between parties couldn't save it.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to deposit security for costs under section 78 of the Elections Act
Failure to deposit security of costs is fatal to the petition and justifies striking it out, notwithstanding any consent between the parties
Section 78(1) and (2) require a petitioner to deposit security not more than ten days after presentation of the petition. The petition was filed on 6.9.17 and over a month later no security had been deposited, contrary to section 78 and Rules 11 and 12 of the 2017 Rules. Section 78(3) bars further proceedings where security is not deposited. The court relied on Anastasia Wanjiru v IEBC & Shakila Abdalla Mohamed and held the non-compliance fatal; the proposed consent could not cure the statutory default.
Whether a consent between petitioner and respondents can override mandatory statutory requirements
No - the purported consent was irrelevant in view of the court's finding on the mandatory security deposit
The parties had agreed a consent to record the striking out of the petition, but the court reserved ruling and independently examined compliance with section 78 and Rules 11 and 12. Because the non-deposit of security was fatal, the consent could not sustain the petition; the court proceeded to strike it out on its own consideration of the law, rendering the consent irrelevant.
Legal principles established
#- Where a petitioner defaults in depositing security for costs, the court shall not entertain further proceedings on the petition, but may hear an application for dismissal of the petition
Court orders
#- 1.The petition struck out for failure to deposit security for costs
- 2.No orders as to costs to the 1st respondent
- Jurisdiction invoked
- Elections Act, section 78; Election (Parliamentary and County) Petition Rules, 2017, Rules 11 and 12
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Alfred Mdeizi v Independent Electoral & Bounderies Commission ( IEBC) & another [2017] KEMC 50 (KLR)[2017] KEMC 50 (KLR)8 Dec 2017
- Erick Ouma Opany v Independent Electoral & Bounderies Commission (IEBC) & another [2017] KEMC 42 (KLR)[2017] KEMC 42 (KLR)8 Dec 2017
- Githinji Johnson Kamau v Kingara Benson Kamau, Kwanusu Dickson Simiyu & Independent Electoral and Boundaries Commission (Election Petition 1 of 2017) (Civ) [2017] KEMC 63 (KLR)[2017] KEMC 63 (KLR)29 Nov 2017
Cite this brief
#Cite this brief
Caselaw, "Jane Naicar Eshuchi v Maurice Sakwa & 2 others [2017] KEMC 118 (KLR)", Case Analysis (2017). Election Petition (Khwisero Constituency), decision of 11.10.17. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/118/eng@2017-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.