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MagistrateOtherElection Petition dated 6th September 2017 (Karatina)· [2018] KEMC 8 (KLR)

Macharia James Simpson Ndegwa v Independent Electoral and Boundaries Commission & Weru Peter Kinyua [2018] KEMC 8 (KLR)

Magistrates' Court at Karatina (Election Court)
5 January 2018
FMF. W. Macharia
945 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When an elected candidate dies while an election petition against them is still pending in Kenya, the petition is abandoned as overtaken by events and a by-election fills the seat.

What this practically means

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Executive summary

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This first-instance election petition concerned the August 2017 election of the Member of County Assembly for Ruguru Ward, Mathira Constituency, Nyeri County. The Petitioner, an unsuccessful candidate, challenged the conduct of the election and the declared results, seeking among ten orders a declaration that the 2nd Respondent's election and declaration were null and void and a fresh election. The petition proceeded to full hearing, with the Petitioner calling nine witnesses and the two Respondents calling four and three witnesses respectively. Before submissions could be filed, the 2nd Respondent, the declared winner, died on 12th December 2017. The court held that under Article 194(1)(a) of the Constitution the MCA office became vacant upon death, and the Speaker of the Nyeri County Assembly had already declared the seat vacant under Section 19(3) of the Elections Act, necessitating a by-election. Since the main purpose of the petition was to nullify the election and precipitate a by-election, proceeding would serve no practical purpose; any determination would be overtaken by events. The court observed that the electoral laws are silent on a candidate's death mid-petition, the Petition Rules addressing only death before filing, and referred to the Mutula Kilonzo case on the resulting grey areas. The court directed that the petition was overtaken by events, declined to continue it against the 1st Respondent, and ordered each party to bear its own costs, holding that the Rule 30 costs provision did not apply to a petition without a logical conclusion.

Key legal issues

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01

Effect of the death of the successful candidate on a pending election petition

Holding

The petition against the deceased 2nd Respondent abated, and because the office fell vacant with a by-election to be gazetted, the entire petition (including the claim against the 1st Respondent) was overtaken by events and would serve no practical purpose.

Reasoning

The court noted that under Article 194(1)(a) the MCA office became vacant on the death of the 2nd Respondent, and the Speaker declared the seat vacant under Section 19(3) of the Elections Act, necessitating a by-election. The petition's main purpose was to nullify the election and result in a by-election, which will occur in any event. Any determination for or against the Petitioner would be overtaken by events. The court also observed the electoral laws are silent on the situation of a candidate dying mid-petition, and cited the Mutula Kilonzo case on the grey areas of remedies where a third party is elected in the by-election.

p. 2
02

Costs where a petition does not reach a logical conclusion

Holding

Although Section 84 of the Elections Act provides that costs follow the cause, the Election Petition Rules provisions on costs do not apply where the petition ends for reasons other than determination; each party was ordered to bear its own costs.

Reasoning

The court cited Section 84 of the Elections Act requiring costs to follow the cause, but held that the costs provisions of the Election Petition Rules do not apply to a petition that never reached logical conclusion because of the 2nd Respondent's demise. In the prevailing circumstances the just order was for each party to bear its own costs.

p. 2

Legal principles established

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  • Where the person whose election is contested dies during the pendency of the petition and the seat is declared vacant, the petition is overtaken by events and will not be continued even against the other respondents.
  • The office of a member of county assembly becomes vacant upon the member's death, triggering the Speaker's duty to notify the commission under Section 19(3) of the Elections Act.

Court orders

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  1. 1.The petition is declared overtaken by events
  2. 2.The petition against the 1st Respondent shall not proceed, it serving no practical purpose to continue
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 194(1)(a)
  • Constitution of Kenya, 2010Article 88(4)
  • Elections Act No. 24 of 2011Section 19(3)
  • Elections Act No. 24 of 2011Section 84
  • Independent Electoral and Boundaries Commission Act No. 9 of 2011general
  • The Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 27; Rule 30

Cases cited (1)

  • Party of Independent Candidate of Kenya & Ano v Hon. Mutula Kilonzo & 2 others
    High Court of Kenya at Machakos, Election Petition No. 6 of 2013
Jurisdiction invoked
Constitution of Kenya, 2010, Article 194(1)(a) and Elections Act No. 24 of 2011 (election petition jurisdiction)

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, "Macharia James Simpson Ndegwa v Independent Electoral and Boundaries Commission & Weru Peter Kinyua [2018] KEMC 8 (KLR)", Case Analysis (2018). Election Petition dated 6th September 2017 (Karatina). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/8/eng@2018-01-05

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