Khalif v Abdille Eliyas Jimale County Returning Officer, Mandera North & 2 others (Election Petition E003 of 2022) [2022] KEMC 3 (KLR)
The bottom line
#A Kenyan election court refused to dismiss an MCA petition over a 5-day late deposit of security for costs, so the case proceeds to a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of filing the election petition
The petition was filed in time; it was filed on September 8, 2022, the deadline day, given the declaration of results on August 11, 2022.
Section 76(1)(a) of the Elections Act and article 87(2) of the Constitution require an election petition (other than a presidential one) to be filed within twenty-eight days of the declaration of results. The 1st respondent was declared elected MCA for Rhamu Dimtu Ward on August 11, 2022. Counting twenty-eight days from that date, the petition filed on September 8, 2022 fell on the last permissible day, so the limitation ground failed.
Service of the petition on the 1st respondent
Non-service was not proved; the presumption of proper service under article 87(3) applied, reinforced by the 1st respondent instructing counsel within the statutory period.
The 1st respondent asserted he learned of the petition through the newspaper and was never served. The court held the burden of proving non-service lay on him. Absent proof, the legal presumption of proper service under article 87(3) applied. The court also took judicial notice that the 1st respondent filed a notice of appointment of counsel on September 19, 2022, within the statutory period for entering appearance, undercutting the claim of non-service.
Late deposit of security for costs
The 5-day delay in depositing security for costs was excused under rule 19(1) of the 2017 Petition Rules and did not warrant dismissal of the petition.
The petition was filed on September 8, 2022 and security for costs was deposited on September 23, 2022, five days late. The court exercised its power under rule 19(1) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 to extend time for acts or omissions done outside prescribed time where needed to prevent injustice. Dismissal of the entire petition for a 'paltry' 5-day delay would be drastic and cause injustice, though the outcome would differ had security never been deposited.
Legal principles established
#- A preliminary objection consists of a pure point of law which has been pleaded or arises by clear implication out of pleadings, and which may dispose of the suit.
- An election court may extend or limit time for any act or omission done outside a prescribed time where necessary to ensure injustice is not done to any party.
- A minor delay (5 days) in depositing security for costs, where security is ultimately deposited, does not warrant summary dismissal of an election petition.
Court orders
#- 1.The preliminary objection dated September 21, 2022 is dismissed with costs
- 2.The notice of motion dated September 29, 2022 is allowed as prayed, by consent of the parties
- Jurisdiction invoked
- Elections Act No 24 of 2011 (sections 76 and 78) and the Elections (Parliamentary and County Elections) Petition Rules, 2013, read with article 87 of the Constitution (magistrates' court election petition jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khalif v Abdille Eliyas Jimale County Returning Officer, Mandera North & 2 others (Election Petition E003 of 2022) [2022] KEMC 3 (KLR)", Case Analysis (2022). Election Petition dated August 7, 2022 (Rhamu Dimtu Ward). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/3/eng@2022-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.