Kiriinya v Independent Electoral and Boundaries Commission & 2 others (Election Petition E001 of 2022) [2022] KEMC 17 (KLR)
The bottom line
#A Kenyan election petition challenging an MCA result was struck out for being filed one day late, never properly served, and missing the required security deposit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Election Petition is fatally and incurably defective for offending the mandatory provisions of Section 76(1) of the Elections Act; namely that it was filed outside the Twenty-Eight (28) days statutory stipulated time frame
- 2.Whether the Petition offends the mandatory provisions of Rule 10 of the Elections (Parliamentary and County Elections) Petition Rules by failing to serve the Respondents at all or within the fifteen (15) days statutory stipulated time frame
- 3.Whether the Petition offends the mandatory provisions of Section 78 of the Elections Act and Rule 13 of the Elections (Parliamentary and County Elections) Petition Rules for failure to deposit the mandatory security for costs
- 4.Whether this court had jurisdiction to hear and determine this Petition by virtue of noncompliance with the mandatory provisions of the law
- 5.Whether the petition filed on 8th September 2022 should be struck out and/or whether the petition is fatally defective, incompetent, frivolous, vexatious and ought to be dismissed with costs
Key legal issues
#Whether the petition was filed out of time under Section 76(1) of the Elections Act
The petition was filed out of time and is incompetent.
Results were announced around 10th or 11th August 2022, so the petition ought to have been filed by 7th September 2022. It was filed on 8th September 2022, one day late. The Petitioner did not counter the Respondents' arguments, and the court found the filing outside the statutory 28-day period rendered the petition incompetent and liable to be struck out.
Whether the petition was served on the Respondents within the prescribed period
No service was effected or proved; the petition is incurably defective.
The Petitioner filed no affidavit of service despite claiming to have served on 14th September 2022. Service of the petition is a mandatory requirement under the Constitution, the Act and the Rules, and mere knowledge of the petition cannot cure want of service. Without proof of service the petition cannot proceed, as it deprives respondents of the opportunity to be heard.
Whether failure to deposit security for costs under Section 78 of the Elections Act is fatal
Failure to deposit the security of Ksh.100,000 within the mandatory ten days renders the petition fatally defective; the petition must be dismissed.
Despite being granted a further seven days from 15th November 2022, the Petitioner never deposited the Ksh.100,000 security for costs. Section 78(3) provides that no further proceedings shall be heard on an unsecured petition. Following Ibrahim Ahmed and Omari Juma Mwakamole, the requirement is substantive and goes to jurisdiction, and is not curable under Article 159(2)(d). Section 78 provides for dismissal, not striking out, in such circumstances.
Whether the court retains jurisdiction over the petition
The cumulative non-compliance stripped the court of jurisdiction to hear the matter.
Failure to file within time, failure to serve within the prescribed period or at all, and failure to deposit security for costs each go to the root of the court's jurisdiction. A court without jurisdiction cannot take any further step in the matter, and the petition cannot be kept alive.
Legal principles established
#- Service of an election petition is a mandatory requirement; mere knowledge of a petition by a respondent cannot cure want of service.
- Failure to deposit security for costs within the statutory ten days is a substantive requirement that goes to the root of the court's jurisdiction and is not curable.
- The only way to prove service of a petition is by filing an affidavit of service.
Court orders
#- 1.The Petition filed on 8th September 2022 is struck out as incurably defective, irredeemable and filed out of time
- 2.The 1st and 2nd Respondents' Notice of Preliminary Objection dated 10th November 2022 is allowed
- 3.The 3rd Respondent's Notice of Preliminary Objection dated 17th November 2022 is allowed
- 4.The 1st and 2nd Respondents' application dated 20th September 2022 is allowed
- 5.Costs of the Objections, the application and the Petition are awarded to the Respondents
- 6.A Certificate pursuant to Section 86(1) of the Elections Act, 2011 is issued
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Elections Act, Sections 76, 77, 78, 86(1); Elections (Parliamentary and County Elections) Petition Rules, 2013
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the Petition herein was filed out of time; service of the Petition was not efiected upon the Respondents as required by Rule 10(1) of the Election Petition Rules and the failure by the petitioner to deposit security for costs renders the petition incurably defective irredeemable and the same is hereby struck out.
The Respondents Preliminary Objections are merited and the same are allowed. Similarly, the 1st and 2nd Respondents application dated 20th September, 2022 is allowed.
The Respondents will have costs of the Objections, application and the Petition. As required by the law a Certificate pursuant to Section 86(1) of the Elections Act, 2011 be and is hereby issued.
Failure to file the Petition within time; failure to serve the same within the prescribed period or at all; and failure to deposit security for costs strips this court of jurisdiction to hear this matter.
Mere knowledge of existence of a petition by the respondent can neither cure want of service nor discharge the burden of service imposed on the petitioner by the law.
This essentially factors in any exogenous factors that may come into play to hinder the deposit of security for costs as at the time of filing the petition.
Issues in the judgment
#The judgment reproduces appellate reasoning (including 'we uphold the preliminary objection... we accordingly dismiss the appeal') from Paul Posh Aborwa and refers to 'this appeal', which is inconsistent with this being a first-instance magistrates' court election petition.
The date of the 1st and 2nd Respondents' application is inconsistently stated as 20th September 2021 in the directions paragraph but as 20th September 2022 in the final orders.
Issue 2 is framed in the list of issues as concerning Rule 12 with a seven-day service period, but the analysis under Issue No. 2 addresses Rule 10 and a fifteen-day period.
The court strikes out the petition while quoting authority that Section 78 prescribes dismissal rather than striking out for failure to deposit security for costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiriinya v Independent Electoral and Boundaries Commission & 2 others (Election Petition E001 of 2022) [2022] KEMC 17 (KLR)", Case Analysis (2022). Election Petition filed 8th September 2022 (Ruiru/Rwarera Ward, Buuri Constituency, Meru County). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/17/eng@2022-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.