Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateStruck Out· [2022] KEMC 6 (KLR)

Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2022] KEMC 6 (KLR)

Chief Magistrate's Court (Election Petition)
15 November 2022
1,046 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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

#
This first-instance election petition came up for hearing before the Chief Magistrate's Court on November 14, 2022, with two witnesses testifying. The petitioner's two witnesses admitted that their affidavits were commissioned by Mr. Shabaan Alex, an advocate associated with the petitioner's own law firm. Counsel for the 1st and 2nd respondents raised an oral preliminary objection that the affidavits offended section 4(1) of the Oaths and Statutory Declarations Act, which bars a commissioner for oaths from acting in a matter in which he is advocate for a party or in which he is interested, relying on Stephen M. Mogaka v IEBC, Kenya Federation of Labour v AG and Caltex Oil. The 3rd respondent adopted the objection, adding that Article 159(2)(d) cannot cure the defect and that a petition cannot stand once its affidavits are struck out. Petitioner's lead counsel Mr. Masake conceded his commissioning stamp was used, arguing that only affidavits of witnesses who had testified should be expunged. The court, following Lee Njiru v JK Lokorio, held the contravention of section 4(1) is mandatory and cannot be cured by Article 159. It expunged the petitioner's affidavit, PW2's affidavit and all the petitioner's witnesses' affidavits. Relying on Rule 12(1)(a) and (b) of the Election (Parliamentary and County Elections) Petition Rules, 2017, which requires a petition to be supported by an affidavit, the court found the petition left without a foundation and struck it out with costs to the respondents, granting a right of appeal of 5 days.

Key legal issues

#
01

Commissioning of affidavits by an interested advocate

Holding

The affidavits sworn before the lead counsel for the petitioner offended section 4(1) of the Oaths and Statutory Declarations Act and were expunged

Reasoning

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.

p. 3
02

Fate of a petition unsupported by affidavits

Holding

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

Reasoning

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.

p. 3

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. 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. 2.The petition is struck out with costs to the respondents
  3. 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.