Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2022] KEMC 6 (KLR)
The bottom line
#A Kenyan election petition collapsed entirely because the petitioner's own lawyer commissioned the supporting affidavits, which the law forbids.
What this practically means
#Executive summary
#Key legal issues
#Commissioning of affidavits by an interested advocate
The affidavits sworn before the lead counsel for the petitioner offended section 4(1) of the Oaths and Statutory Declarations Act and were expunged
The petitioner's witnesses admitted appearing before Mr. Shabaan Alex, an advocate on record for the petitioner, for commissioning. Counsel conceded his stamp was used. Under the proviso to section 4(1), a commissioner for oaths cannot act in a matter in which he is advocate for a party or in which he is interested. Relying on prior authorities where such affidavits were struck out, and holding that Article 159(2)(d) cannot cure the mandatory provision, the court expunged the affidavits.
Fate of a petition unsupported by affidavits
Since Rule 12(1)(a) and (b) of the Election (Parliamentary and County Elections) Petition Rules, 2017 requires a petition to be supported by an affidavit, striking out the affidavits left the petition without foundation and it was struck out
The court invoked Rule 12(1)(a) and (b) which mandates that a petition be supported by an affidavit. With all supporting affidavits expunged, the petition could not stand alone, as counsel for the 3rd respondent had submitted. The court therefore struck out the petition itself, awarding costs to the respondents, and granted a right of appeal of 5 days.
Legal principles established
#- A commissioner for oaths may not exercise his powers in a proceeding in which he is the advocate for any party or in which he is interested
- A petition must be supported by an affidavit; if the supporting affidavits are struck out, the petition is left without a foundation and falls with them
Court orders
#- 1.The petitioner's affidavit sworn on 30/8/2022, PW2's affidavit sworn on 1/9/22 and all the petitioner's witnesses' affidavits are expunged and struck out from the court records
- 2.The petition is struck out with costs to the respondents
- 3.Right of appeal 5 days
- Jurisdiction invoked
- Election (Parliamentary and County Elections) Petition Rules, 2017 (first-instance election petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2022] KEMC 6 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/6/eng@2022-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.