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MagistratePartially AllowedElection Petition E007 of 2022 (petition dated 1st October, 2022, filed 6th October, 2022)· [2022] KEMC 11 (KLR)

Bukura v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E007 of 2022) [2022] KEMC 11 (KLR)

Magistrates' Court (Election Court)
23 November 2022
15,785 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~63 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of an election court (Senior Resident Magistrate, Mandera) in a petition challenging the alleged fraudulent alteration of the 2nd respondent's party list of Nominated Members of County Assembly dealt with the 3rd respondent's preliminary objection and the petitioner's application to enlarge time for depositing security for costs under section 78 of the Elections Act and Rule 13 of the Elections (Parliamentary and County Elections) Petition Rules, 2017. The 3rd respondent and the 1st respondent argued that non-payment of the security within ten days rendered the petition a nullity and ousted the court's jurisdiction, relying on Esposito Franco and allied authorities. The petitioner and the 2nd respondent contended that party list nomination disputes fall outside section 78, and in any event the court could extend time, citing Samuel Kazungu Kambi, Charles Ongódo Were and the Supreme Court's principles in Nicholas Kiptoo Arap Salat. The court held that party list petitions are covered by section 78, since section 78 refers to an election rather than 'election results', and gazetttement of nominees is an integral part of the election process per Moses Mwicigi. It found as a fact that the petitioner deposited the Kshs 100,000 security on 4th November 2022, outside the ten-day window. Adopting the school of thought favouring judicial discretion, the court distinguished Esposito Franco, held that section 78(3) stays proceedings rather than commanding dismissal, and that a preliminary objection under section 78 cannot dismiss a petition. Taking judicial notice of e-filing platform downtime and finding no prejudice to any party, the court exercised its discretion in the petitioner's favour. The preliminary objection was dismissed, the petitioner's application was allowed in terms as prayed, and costs were made costs in the cause.

Key legal issues

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01

Whether party list nomination petitions are exempt from section 78 of the Elections Act

Holding

They are not exempt; section 78 refers to an election, not to 'election results', and party list nomination is part of the election process.

Reasoning

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.

p. 23
02

Effect of late deposit of security for costs and whether the court may extend time

Holding

Non-compliance stays, but does not automatically dismiss, the petition; the court has discretion to enlarge time for depositing security for costs.

Reasoning

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.

p. 26
03

Whether the petitioner advanced sufficient reasons for the delay

Holding

Multiple inconsistent reasons were advanced, but the e-filing portal technical challenges justified exercise of discretion in the petitioner's favour.

Reasoning

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.

p. 27

Legal principles established

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  • 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

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  1. 1.The 3rd respondent's preliminary objection dated 24th October, 2022 is dismissed
  2. 2.The petitioner's application dated 8/11/2022 is allowed in terms as prayed
  3. 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

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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, "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.