N’Chizumo v Independent Electoral & Boundaries Commission; Jubilee Party of Kenya & 2 others (Interested Parties) (Election Petition E001 of 2022) [2023] KEMC 11 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Compliance with Section 78(1) of the Elections Act
The Petitioner did not comply; the security of Ksh.100,000/= was deposited about twenty-one days after filing, beyond the ten-day statutory period
Section 78(1) and 2(c) of the Elections Act require a petitioner to deposit Ksh.100,000/= not more than ten days after presentation of the petition. The petition was filed on 6th October 2022 and the deposit made on 27th October 2022. The court held there was no doubt this constituted non-compliance with the express provisions of Sections 78(1) and (3).
Whether the court can extend time for depositing security for costs
The court has discretion to extend time, but only upon a formal application by the petitioner with sufficient reason shown; no such application was filed here, so the discretion could not be exercised despite sympathy for the innocent petitioner
The court accepted that a mistake by an advocate should not be visited on an innocent client, and that courts retain discretion to extend the Section 78(1) timeline per Patrick Ngeta Kimanzi and Elizabeth Jebet Kibor. However, Section 59 of the Interpretation and General Provisions Act still contemplates an application being made, and the petitioner filed none. The court therefore could not, of its own motion, deem the deposit as having been made in time.
Whether the Petition should be dismissed under Section 78(3) for non-deposit of security
Yes; the Respondent applied for dismissal and the Petition was dismissed under Section 78(3)
Having found non-compliance with Section 78(1) and no formal application for extension of time, the court held the Respondent's motion under Section 78(3) must succeed. The Respondent had applied for dismissal, satisfying the statutory precondition, so the petition was dismissed with costs.
Whether the Petition should be dismissed for failure to join persons against whom adverse relief is sought
The issue was treated as spent; the Respondent did not canvass it in submissions
Although the Motion raised the ground that the Petition offended natural justice by seeking orders against non-parties, the Respondent did not address the court on this ground in submissions. The court declined to determine it, treating the issue as spent given its findings on the other issues.
Legal principles established
#- Payment of security for costs under Section 78 of the Elections Act is a substantive requirement going to the root of the election court's jurisdiction; failure to deposit within ten days renders the petition liable to dismissal on application under Section 78(3)
- A court may only exercise its discretion to extend time under Section 78(1) where moved by a formal application for extension of time, even where the delay is attributable to the advocate rather than the client
Court orders
#- 1.The Notice of Motion dated 3rd November, 2022 succeeds
- 2.The Petition is dismissed in line with Section 78(3) of the Elections Act for failure to deposit security for costs within the statutory period
- 3.The Respondent is awarded the costs of the Notice of Motion dated 3rd November, 2022 and the Petition, capped at Ksh.200,000/=, the Petition not having proceeded
- 4.A certificate of the determination in accordance with Section 86 of the Elections Act shall issue to the Independent Electoral and Boundaries Commission and the Speaker of the County Assembly of Kwale
- Jurisdiction invoked
- Election court jurisdiction under the Elections Act, No. 24 of 2011 (petition challenging nomination to the Kwale County Assembly)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "N’Chizumo v Independent Electoral & Boundaries Commission; Jubilee Party of Kenya & 2 others (Interested Parties) (Election Petition E001 of 2022) [2023] KEMC 11 (KLR)", Case Analysis (2023). Petition dated 6th October, 2022 (Kwale County Assembly Election Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/11/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.