Bukura v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E007 of 2022) [2022] KEMC 11 (KLR)
The bottom line
#A Kenyan election court ruled that a late deposit of security for costs does not kill an election petition, including party list nomination disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether party list nomination petitions are exempt from section 78 of the Elections Act
They are not exempt; section 78 refers to an election, not to 'election results', and party list nomination is part of the election process.
The court noted the definition of 'election results' in section 2 of the Elections Act but held that section 78 refers to an election rather than election results. Relying on the Supreme Court's decision in Moses Mwicigi, the gazettement of nominees is an integral part of the election process. Elections cannot therefore be restricted to the casting of votes by voters, and party list petitions fall under section 78.
Effect of late deposit of security for costs and whether the court may extend time
Non-compliance stays, but does not automatically dismiss, the petition; the court has discretion to enlarge time for depositing security for costs.
The court identified two conflicting schools of thought, led by Esposito Franco (no discretion) and Samuel Kazungu Kambi (discretion exists). Adopting the second school, it reasoned that section 78(3) stays proceedings unless the objection is removed, section 78 does not expressly nullify the petition, and section 78(4) does not limit grounds for removing an objection. Article 259(9) of the Constitution and section 59 of the Interpretation and General Provisions Act support enlargement after the fact.
Whether the petitioner advanced sufficient reasons for the delay
Multiple inconsistent reasons were advanced, but the e-filing portal technical challenges justified exercise of discretion in the petitioner's favour.
The petitioner gave three conflicting reasons: awaiting consolidation of two petitions, belief that party list petitions require no deposit, and technical challenges on the e-filing portal. The first two were found insufficient, but the court took judicial notice of documented e-judiciary downtime notices, and since the matter was at pretrial stage with no prejudice to any party, the benefit of discretion went to the petitioner.
Legal principles established
#- Party list nomination disputes are election petitions covered by section 78 of the Elections Act and attract the security for costs requirement
- Section 78(3) of the Elections Act stays election petition proceedings rather than commanding dismissal or striking out, leaving room for the objection to be removed and for extension of time
- An election court has power to enlarge time for the deposit of security for costs
- A preliminary objection under section 78 can only stay proceedings, not dismiss a petition
Court orders
#- 1.The 3rd respondent's preliminary objection dated 24th October, 2022 is dismissed
- 2.The petitioner's application dated 8/11/2022 is allowed in terms as prayed
- 3.Costs of the P.O and the application shall be in the cause
- Jurisdiction invoked
- Article 88(4) of the Constitution as read with the Elections Act, 2011 (the court was duly gazetted by the Hon. CJ to hear and determine the petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bukura v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E007 of 2022) [2022] KEMC 11 (KLR)", Case Analysis (2022). Election Petition E007 of 2022 (petition dated 1st October, 2022, filed 6th October, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/11/eng@2022-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.