Khalif v Independent Electoral and Boundaries Commission & another; Waruguru & 2 others (Interested Parties) (Election Petition E001 of 2022) [2023] KEMC 13 (KLR)
The bottom line
#A Nairobi court struck out an election petition because the petitioner served it on the winning candidate too late, proving that missing deadlines can end a case entirely.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition was filed within 28 days as required by Article 87(2) of the Constitution and Section 76 of the Elections Act
The Petition was properly filed within time; although dated October 29, 2022 in error, it was paid for and presented on October 7, 2022, within 28 days of the September 9, 2022 gazettement.
Rule 7 of the Election Rules provides that a Petition is filed by presenting it to the Registrar upon payment of prescribed fees. The court record showed payment on October 7, 2022 at 1757 hours. Applying Article 259(5) on computation of time (excluding the first day, including the last), the Petition fell within the 28 days from the gazette notice of September 9, 2022. The 1st Interested Party's counsel conceded this ground, abandoning it in submissions.
Whether the Petitioner deposited security for costs of Kshs 100,000 within ten days of filing
The Petitioner deposited Kshs 100,000 on October 17, 2022, exactly ten days after filing, and thus complied with Section 78(2)(c) of the Elections Act.
Section 78(1) and (2)(c) of the Elections Act requires a Petitioner to deposit security of not more than ten days after presentation, fixed at Kshs 100,000 for a Petition against a Member of County Assembly. The purpose of the deposit is to recompense respondents defending hopeless petitions and to discourage frivolous litigation. The record showed the deposit made on October 17, 2022 at 1017 hours, exactly ten days after filing on October 7, 2022.
Whether the Petition was served within the fifteen days prescribed by Section 76 of the Elections Act and Rule 10 of the Election Petition Rules
The Petition was not served on the 1st Interested Party within fifteen days; service on November 5, 2022 was out of time and rendered the Petition incurably defective, warranting striking out.
Section 76 of the Elections Act and Rule 10 of the 2017 Rules require service within fifteen days of presentation, by direct service or newspaper advertisement. The Petitioner did not deny that the 1st Interested Party was served on November 5, 2022, well past the deadline. While the Petitioner argued there is a lacuna on service of interested parties and urged Article 159(2)(d), the court held, following binding authority, that service is a mandatory requirement going to the root of the Petition and the High Court has no power to extend time for service. Late service rendered the Petition incurably defective.
Legal principles established
#- An election by nomination through the party list is an 'election' contestable by way of an Election Petition.
- Failure to serve an Election Petition on a respondent/interested party within the prescribed fifteen days is fatal and cannot be cured by Article 159(2)(d).
- For purposes of computing the 28-day filing period, the date the prescribed fees are paid and the Petition presented to the Registrar is the date of filing, notwithstanding a wrong date on the face of the Petition.
Court orders
#- 1.The 1st Interested Party's Notice of Motion dated November 7, 2022 is allowed.
- 2.The Petition filed herein is struck out with costs.
- 3.All the Respondents and interested parties are awarded costs of the Petition and the Application, to be taxed in accordance with the Advocates Remuneration Order.
- 4.A certificate of determination in accordance with Section 86(1) of the Election Act to issue to the Independent Electoral and Boundaries Commission and the Speaker of the County Assembly.
- Jurisdiction invoked
- Article 87 of the Constitution read with Section 76 of the Elections Act and the Elections (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khalif v Independent Electoral and Boundaries Commission & another; Waruguru & 2 others (Interested Parties) (Election Petition E001 of 2022) [2023] KEMC 13 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/13/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.