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MagistrateOthernot stated in the extract· [2018] KEMC 74 (KLR)

Geoffrey Githinji Mwangi & 2 others v Jubilee Party & 9 others [2018] KEMC 74 (KLR)

Chief Magistrate's Court at Nanyuki
3 January 2018
LML.K. Mutai
3,296 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an election petition because its supporting affidavit was stamped by a law firm instead of being commissioned by an individual Commissioner for Oaths.

What this practically means

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Executive summary

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This is a ruling in an election petition concerning the nomination of members of the Laikipia County Assembly. The 1st–4th interested parties filed a preliminary objection dated 7th December 2017 and the 8th interested party a notice of motion of even date, both contending that the petitioners' affidavit sworn on 4th September 2017 was fatally defective because it was jointly sworn by three petitioners and was commissioned by a firm of advocates (Bw'onwong'a & Co Advocates) using an office stamp rather than by an individual Commissioner for Oaths. The petitioners opposed, relying on Order 19 of the Civil Procedure Rules, sections 1A and 3A of the Civil Procedure Act and Article 159 of the Constitution, arguing the defects were procedural, curable technicalities, and cited authority that joint affidavits are not defective. The court framed a single issue: whether to strike out the affidavit for being jointly sworn and improperly commissioned. It held that joint swearing does not invalidate an affidavit, since Rule 12(1) requires an affidavit sworn by 'at least one' petitioner, following Shafina Magre. However, on commissioning, it found that the affidavits were not commissioned as required by the Oaths and Statutory Declarations Act and were therefore mere documents, not affidavits, following David Wamatsi Omusotsi. Having struck out the supporting affidavit, and bound by Dickson Mwenda Githinji v Gatirau Peter Munya that a supporting affidavit is mandatory, the court found the petition incompetent and struck it out, with the petitioners to bear the costs. Ruling delivered at Nanyuki on 3rd January 2018 by L.K. Mutai, Chief Magistrate.

Key legal issues

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01

Whether the jointly sworn supporting affidavit is fatally defective

Holding

Joint swearing does not invalidate the affidavit; Rule 12(1)'s use of 'at least' permits two or more petitioners to swear a joint affidavit.

Reasoning

Rule 12(1) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 requires the affidavit to be sworn personally by the petitioner or by at least one petitioner. The phrase 'at least' sets a minimum, not a maximum, so joint swearing is permissible. The court followed Shafina Magre, where a joint verifying affidavit was held imperfect only in form.

p. 4
02

Whether commissioning by a firm of advocates rather than an individual Commissioner for Oaths vitiates the affidavit

Holding

Yes - the affidavit was not commissioned as statutorily required and is a mere document, not an affidavit in law.

Reasoning

Sections 2, 4 and 8 of the Oaths and Statutory Declarations Act contemplate commissioning by an individual Commissioner for Oaths. Relying on David Wamatsi Omusotsi, the court held affidavits cannot be commissioned by a firm of advocates. Invocations of Article 159 and sections 1A and 3A of the Civil Procedure Act cannot cure this defect.

p. 6
03

The fate of a petition whose supporting affidavit is struck out

Holding

A petition unsupported by an affidavit is incompetent and must be struck out.

Reasoning

Rule 8(4)(b) requires a petition to be supported by an affidavit sworn by the petitioner. In Dickson Mwenda Githinji v Gatirau Peter Munya the Court of Appeal held a supporting affidavit is a mandatory requirement. The court, bound by that decision, found the petition incompetent and struck it out with costs.

p. 6

Legal principles established

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  • A joint affidavit sworn by more than one petitioner is not per se defective, as Rule 12(1) requires an affidavit sworn by 'at least one' petitioner.
  • An affidavit must be commissioned by an individual Commissioner for Oaths, not a firm of advocates; a document not so commissioned is not an affidavit in law.
  • A supporting affidavit is a mandatory requirement for an election petition; a petition filed without one is incompetent.

Court orders

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  1. 1.The affidavit in support of the petitioners' petition sworn on 4th September 2017 is struck out
  2. 2.The petition is struck out with costs
  3. 3.The Petitioners shall bear the costs of this petition
Jurisdiction invoked
Election petition under the Elections (Parliamentary and County Elections) Petition Rules, 2017

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, "Geoffrey Githinji Mwangi & 2 others v Jubilee Party & 9 others [2018] KEMC 74 (KLR)", Case Analysis (2018). not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/74/eng@2018-01-03

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