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MagistrateDismissedElection Petition (Nyandarua), ruling on 4th Respondent's Notice of Motion dated 18/12/2017· [2018] KEMC 56 (KLR)

Monicah Gathoni Githae & another v Independent Electoral and Boundaries Commission & 5 others [2018] KEMC 56 (KLR)

Chief Magistrate's Court (Election Petition)
5 February 2018
6,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 4th respondent in an election petition concerning the composition of the Nyandarua County Assembly brought a Notice of Motion dated 18th December 2017 seeking review, variation or setting aside of the court's ruling of 6th December 2017, which had dismissed preliminary objections and found the petition properly supported by affidavits. He relied on Order 45 Rule 1 of the Civil Procedure Rules and section 80 of the Civil Procedure Act, advancing three grounds: an error apparent on the face of the record (alleging only the 2nd petitioner had sworn a supporting affidavit); discovery of new and important matter, namely the pendency of High Court Constitutional Petition No. 431/2017 by the 2nd petitioner raising similar issues, and the existence of two elected members of the County Assembly living with disability; and abuse of the court process through multiplicity of suits. The application was supported by the IEBC and the 3rd, 5th and 6th respondents and opposed by the petitioners. The court held there was no error apparent: the 1st petitioner had sworn a supporting affidavit, and a review could not be used to make the court sit on appeal over its own ruling. On sub judice, the parties and reliefs in the two petitions were not identical, no High Court orders were produced, and the appropriate remedy would have been a stay, which was not sought. The alleged discovery about disabled members was not new, was a matter for evidence at the hearing, and concerned elected rather than nominated members. The court dismissed the motion with costs to the petitioners and ordered the petition to proceed to hearing on merit.

Key legal issues

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01

Error apparent on the face of the record

Holding

No error was established; the 1st petitioner had sworn a supporting affidavit found on pages 32 to 42 of the petition, and the applicant did not demonstrate how the court was mistaken

Reasoning

The court found that the ruling of 6th December 2017 correctly recorded that both petitioners swore supporting affidavits, and the 1st petitioner attached her supporting affidavit to her replying affidavit. Citing Michael Moliga and National Bank of Kenya Ltd v Njau, the court held that an error apparent must be self-evident; the applicant did not point to any such error and was in effect seeking an appeal against the ruling, which review jurisdiction does not permit.

02

Sub judice / abuse of process arising from High Court Constitutional Petition No. 431/2017

Holding

The two petitions are not substantially the same: the parties differ (the 1st petitioner and the 3rd to 6th respondents are not parties to the High Court petition) and the reliefs differ (nullification of nominated members vs disbanding the entire County Assembly)

Reasoning

The court held that similarity of subject matter alone does not establish sub judice; the parties and reliefs were not identical. No orders from the High Court were attached, and the 2nd petitioner claimed the High Court petition had been abandoned. Dismissal on this ground could cause injustice; the appropriate remedy would have been an application for a stay, which was not sought.

p. 9
03

Discovery of two elected members living with disability as new and important matter

Holding

Rejected as a ground of review: the 4th respondent, by then a sworn member of the Assembly, ought to have known the composition of the Assembly; the matter required evidence at the hearing; and the two members were elected while the petition targets nominated members

Reasoning

The court held the information was not new since the applicant had been sworn in as a nominated member before filing his response and conducted no due diligence. No evidence of the nature of disability was disclosed. The petitioners challenge nomination under special seats, and the 2nd petitioner filed under the youth category, so the alleged discovery would not justify striking out the petition.

p. 10

Legal principles established

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  • A review for error apparent on the face of the record requires an error that is self-evident and does not require elaborate argument; it is not enough that another judge could have taken a different view
  • A court cannot exercise review jurisdiction to sit on appeal over or vary its own ruling merely because another view was possible or new litigation strategies emerge
  • Review will not issue on 'new and important matter' that the applicant, exercising due diligence, could have known at the time of the order
  • Matters requiring proof by evidence cannot be determined on an interlocutory review application

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 18th December 2017 and filed on 19th December 2017
  2. 2.Costs of the application to the petitioners
  3. 3.The election petition to proceed for hearing on merit

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Section 80
  • Civil Procedure Act (Cap 21)Section 6
  • Civil Procedure RulesOrder 45 Rule 1
  • Constitution of Kenya, 2010Article 35(2)

Cases cited (10)

  • Thiba Min Hydro Co Ltd vs Josphat Karu Ndwiga
    (2013) eKLR
  • Republic vs Chairman District Alcoholic Drinks Regulations Committee and 4 others ex parte Detlef Heier
  • Co-operative Umon Ltd vs Co-operative Coffee Millers Ltd and Another
    (2016) eKLR
  • Benosi Vs Wiyley
  • Margaret Migwi vs Barclays Bank of Kenya Ltd
    (2016) eKLR
  • Pevans East Africa Ltd and Another vs Betting Control and Licensing Board and Others
  • Mbaraka Issa Kombo vs IEBC and Three Others
    (2017) eKLR
  • Mohammed Mohammed Dily vs Hassan Abdi Rahman and Two Others
    (2010) eKLR
  • Michael Moliga vs Ford Kenya Elections and Nominations Board and Others
    (2013) eKLR
  • National Bank of Kenya Ltd vs Njau
    (1965-98) 2 EA
Jurisdiction invoked
Sections 3A and 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 of the Civil Procedure Rules; Article 35(2) of the Constitution 2010 also invoked

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, "Monicah Gathoni Githae & another v Independent Electoral and Boundaries Commission & 5 others [2018] KEMC 56 (KLR)", Case Analysis (2018). Election Petition (Nyandarua), ruling on 4th Respondent's Notice of Motion dated 18/12/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/56/eng@2018-02-05

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