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MagistrateStruck OutElection Petition (Khwisero Constituency), decision of 11.10.17· [2017] KEMC 118 (KLR)

Jane Naicar Eshuchi v Maurice Sakwa & 2 others [2017] KEMC 118 (KLR)

Chief Magistrate's Court (Election Court), Mumias
11 October 2017
755 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an election petition filed by Jane Naicar Eshuchi challenging the election of Maurice Swaka as member of the National Assembly for Khwisero Constituency, with Erick Omondi (the returning officer) and the Independent Electoral and Boundaries Commission as 2nd and 3rd respondents. At pre-trial directions, counsel for the 1st respondent indicated a notice of preliminary objection dated 18.9.17 and a notice of motion dated 22.9.17 seeking striking out of the petition, and proposed a consent by which the petition would be struck out with no orders as to costs. The court declined to adopt the consent immediately and reserved a ruling. Examining section 78 of the Elections Act, the court noted that a petitioner must deposit security for costs not more than ten days after presentation of the petition: KShs 500,000 for a petition against a member of Parliament. Rules 11 and 12 of the Election (Parliamentary and County) Petition Rules, 2017 reinforce the same requirement. The petition, filed on 6.9.17, was still without security more than a month later. Relying on Anastasia Wanjiru v IEBC & Shakila Abdalla Mohamed (Election Petition No. 11 of 2013, Malindi), the court applied the principle that no further proceedings may be entertained where security has not been deposited, though the respondent's dismissal application may be heard. Holding the non-deposit fatal, the court found the proposed consent irrelevant and struck out the petition with no orders as to costs. A 14-day right of appeal was noted.

Key legal issues

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01

Effect of failure to deposit security for costs under section 78 of the Elections Act

Holding

Failure to deposit security of costs is fatal to the petition and justifies striking it out, notwithstanding any consent between the parties

Reasoning

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.

p. 2
02

Whether a consent between petitioner and respondents can override mandatory statutory requirements

Holding

No - the purported consent was irrelevant in view of the court's finding on the mandatory security deposit

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The petition struck out for failure to deposit security for costs
  2. 2.No orders as to costs to the 1st respondent

Authorities

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Legislation

  • Elections ActSection 78
  • (Parliamentary and County) Election Petition Rules, 2017Rules 11 and 12

Cases cited (1)

  • Anastasia Wanjiru v IEBC & Shakila Abdalla Mohamed
    Election Petition No. 11 of 2013 (Malindi)
Jurisdiction invoked
Elections Act, section 78; Election (Parliamentary and County) Petition Rules, 2017, Rules 11 and 12

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.