Mussa & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition E001 of 2022) [2022] KEMC 18 (KLR)
The bottom line
#A Kenyan election court refused to strike out late-filed responses in a Damajale Ward petition, ruling that missing deadlines is a curable mistake, not a fatal one.
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 respondent's responses to the petition and the supporting affidavits thereto should be struck out
- 2.Whether the time for filing the responses to petition and additional affidavits should be enlarged
Key legal issues
#Whether responses to the petition filed out of time should be struck out under rule 11(1)
No. Rule 11(1) uses 'may' and is discretionary, not mandatory; the infraction is curable and the petitioners demonstrated no substantial prejudice.
The court read rule 11(1) together with rules 5(1) and 19(1), which vest discretion in the election court to determine the effect of non-compliance and to extend time to prevent injustice. Guided by article 159(2)(d) and section 80(1)(d), and the principles in Alexander Khamasi Mulimo v IEBC, the court found the delay did not go to the root of the petition, that striking out would cause greater prejudice to the respondents and the voters of Damajale ward, and that striking out is a draconian, last-resort measure.
Whether the affidavit of Abdi Sheikh Mohamed was fatally defective for non-compliance with rule 9 of the Oaths and Statutory Declarations Rules (unsealed, unmarked annexures)
No. The defect is purely technical and curable under rule 12(14) of the Petition Rules read with the Oaths and Statutory Declarations Act and order 19 rule 7 of the Civil Procedure Rules.
Although rule 9 of the Oaths and Statutory Declarations Rules appears mandatory, rule 12(14) of the Election (Parliamentary and County) Petition Rules deliberately incorporates the Oaths and Statutory Declarations Act and order 19 of the Civil Procedure Rules, which allow the court to receive affidavits notwithstanding defects in form or technical irregularity. The court aligned itself with Litein Tea Factory Company Ltd v Davis Kiplangat Mutai and declined to strike out the affidavit.
Whether time should be enlarged for filing the responses and additional witness affidavits
Yes. Having declined to strike out the responses, the court allowed the respondents' applications and granted leave to file responses and the five witness affidavits out of time.
The court reasoned that for the same reasons it disallowed the striking-out applications, the respondents' applications of October 17 and 18, 2022 should be allowed. It held that because the 1st and 2nd respondents' responses were not properly on record before, the additional affidavits of the presiding officers would be allowed alongside the now-admitted responses, deeming all pleadings and affidavits filed on the e-filing platform duly filed.
Legal principles established
#- Rule 11(1) of the Elections (Parliamentary and County) Petition Rules, 2017 is not couched in mandatory terms; failure to file a response within seven days is curable at the court's discretion under rules 5(1) and 19(1).
- An election court may excuse non-conformity with election rules where the infraction does not cause prejudice and does not go to the root of the dispute, placing substantive justice over procedural considerations.
- Striking out of pleadings is a draconian measure to be employed sparingly and as a last resort.
- Defects in form in affidavits in election petitions are curable because rule 12(14) incorporates the Oaths and Statutory Declaration Act and order 19 of the Civil Procedure Rules.
Court orders
#- 1.The petitioner's applications dated October 9, 2022 and October 10, 2022 are hereby dismissed.
- 2.The respondent's applications dated October 17, 2022 and October 18, 2022 are hereby allowed.
- 3.The respondents are hereby granted leave to file their responses to petition together with the accompanying affidavits out of time.
- 4.The 1st and 2nd respondents are granted leave to file the witness affidavits sworn by Yussuf Aden Ali, Abdirahman Hire, Abdullahi Kheir Yussuf, Abdifatah Yarrow and Ibrahim Farah Hassan.
- 5.The responses to petition, supporting affidavits and witness affidavits mentioned above and filed on the e-filing platform are hereby deemed to be duly filed.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Elections Act, sections 79 and 80; Elections (Parliamentary and County) Petition Rules, 2017 (election petition original jurisdiction)
Relief refused
#Striking out of the 1st and 2nd respondents' response dated October 7, 2022 and supporting affidavit
Filed out of time but rule 11(1) is not mandatory ('may' not 'shall'); no substantial prejudice demonstrated; defect in affidavit is curable and purely technical
Striking out of the 3rd respondent's response dated September 20, 2022
Same reasons as above; striking out would occasion greater injustice to the 3rd respondent and the voters of Damajale ward
Striking out and expunging of the affidavit of Abdi Sheikh Mohamed sworn October 7, 2022 for defective annexures
Defect is in form only; rule 12(14) of the Petition Rules, the Oaths and Statutory Declaration Act and order 19 rule 7 of the Civil Procedure Rules should be read together to cure defects in form
Costs
All parties to bear their own costs.
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 petitioner's applications dated October 9, 2022 and October 10, 2022 are hereby dismissed.
The respondent's applications datedOctober 17, 2022 and October 18, 2022 are hereby allowed.
The responses to petition, supporting affidavits and witness affidavits mentioned above and filed on the e-filing platform are hereby deemed to be duly filed.
All parties to bear their own costs.
it is clear that it is not couched in mandatory terms. The word used in the rule is "may" and not "shall".
Striking out of pleadings is a draconian measure that should be employed sparingly and as a last resort
Issues in the judgment
#Case number of the election petition is not stated in the ruling; parties identified only by roles
Gazette Notice date inconsistent between paragraphs 13 and 21 (2021 vs 2022)
Section 80 of the Elections Act cited with inconsistent years ('Election Act, 2012' in paragraph 24 versus 'Election Act, 2011' elsewhere)
Submissions state the petition is dated September 5, 2022 while the background records it as filed September 6, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mussa & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition E001 of 2022) [2022] KEMC 18 (KLR)", Case Analysis (2022). Damajale Ward Election Petition (filed September 6, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/18/eng@2022-12-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.