Kimani v Musyoki & 2 others (Election Petition 1 of 2022) [2022] KEMC 15 (KLR)
The bottom line
#A Kenyan court struck out an election petition for missing mandatory requirements and refused withdrawal because proper procedures were not followed, with costs awarded against the petitioner.
What this practically means
#Executive summary
#Key legal issues
#Withdrawal of election petition
The application for withdrawal was dismissed for non-compliance with rule 22(2) requiring publication of a notice of intention to withdraw in Form 6 in a newspaper of national circulation
Rules 21, 22 and 23 prescribe the procedure for withdrawal: leave of the court, an application in Form 5, an affidavit confirming no agreement or undertaking, and publication of notice in Form 6. The petitioner repeatedly failed to publish the notice despite adequate and extended time granted by the court. Since rule 22(2) is in mandatory terms, the application for withdrawal failed.
Jurisdiction over ballot-paper name grievance
The court lacked jurisdiction over the complaint that the petitioner's name was wrongly captured on the ballot papers, as that is a pre-election dispute for the IEBC Dispute Resolution Committee
Article 88(4)(e) of the Constitution and section 74(1) of the Elections Act vest in the IEBC the settlement of electoral disputes relating to or arising from nominations, excluding election petitions. The petitioner's grievance concerned the printing of his name on the ballot before the election; he never lodged a complaint with the IEBC's Dispute Resolution Committee at the appropriate time. Relying on the Owners of Motor Vessel 'Lilian S', the court held that without jurisdiction it could not take any step on that issue.
Defects in form and content of the petition
The petition failed to state the results of the election and the date of declaration of results and was not supported by an affidavit, contrary to mandatory rules 8 and 12, rendering it incurably defective
Rule 8(1) requires a petition to state the date of the election, the results and the date of declaration, and rule 8(4) requires it to be supported by an affidavit sworn by the petitioner. The court perused the petition and confirmed these mandatory contents were missing. Citing Mututho v Kihara, the court held the omission of matters the law requires a petition to contain makes it incurably defective and an abuse of the court process; Article 159(2)(d) cannot cure such defects.
Security for costs
The petitioner's failure to deposit Kshs. 100,000/= security for costs under section 78(2)(c) of the Elections Act and rule 13 within ten days rendered the petition fatally defective
Section 78(1) requires a petitioner to deposit security not more than ten days after presentation of the petition, and section 78(3) provides that no further proceedings shall be heard where security is not deposited. The court confirmed the deposit was never made. The requirement is substantive, not a procedural technicality, and reliance was placed on Ibrahim Ahmed v IEBC that deposit of security for costs is mandatory.
Costs
Costs follow the event under section 84 of the Elections Act; the petitioner, whose petition and withdrawal application failed, was ordered to pay capped all-inclusive costs to the respondents
Section 84 of the Elections Act provides that costs of and incidental to a petition shall follow the cause, in mandatory terms. The respondents incurred costs in filing responses and preliminary objections. Although the award is discretionary, the court exercised its power to cap the costs, awarding Kshs. 50,000/= jointly to the first and second respondents and Kshs. 50,000/= to the third respondent.
Legal principles established
#- An election court has no jurisdiction over pre-election disputes such as complaints about the contents of ballot papers, which lie with the IEBC Dispute Resolution Committee
- A petition must state the results of the election and the date of declaration of results and must be supported by an affidavit; these are mandatory requirements whose omission renders the petition incurably defective
- Failure to deposit security for costs within the statutory period renders an election petition fatally defective
- Withdrawal of an election petition requires strict compliance with rules 21, 22 and 23 of the Petition Rules, including publication of notice of intention to withdraw in a newspaper of national circulation
- A petitioner acting in person is bound to comply with electoral procedure and receives no indulgence
Court orders
#- 1.The petitioner's Notice of motion dated 17th October 2022 and the application dated 27th October 2022 for withdrawal of the petition are dismissed with costs to the respondents
- 2.The preliminary objections by the first, second and third respondents are allowed
- 3.The petition, together with the application dated 23rd August 2022, is struck out as incurably defective and an abuse of the court process, with costs to the respondents
- 4.The first and second respondents are awarded joint all-inclusive costs of Ksh.50,000/= and the third respondent is awarded all-inclusive costs of Ksh.50,000/=
- Jurisdiction invoked
- Elections Act, 2011 (Sections 74, 78, 84) and Elections (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Musyoki & 2 others (Election Petition 1 of 2022) [2022] KEMC 15 (KLR)", Case Analysis (2022). Election Petition No. E001 of 2022 (Limuru Central Ward, Kiambu County) - as per record; exact number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/15/eng@2022-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.