Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others
The bottom line
#Court removes internal IEBC memos from record in election petition.
What this practically means
#The Supreme Court of Kenya ordered five internal memos from the Independent Electoral and Boundaries Commission (IEBC) to be removed from the court record. The memos were attached to affidavits by petitioners Njonjo Mue and Perpetua Adar. The court did not give detailed reasons at this stage, saying it would provide them later. No costs were awarded to either side.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether certain internal memos annexed to affidavits should be expunged from the record
Key legal issues
#Whether internal memos of the respondents should be expunged from the court record.
The court ordered the expungement of five internal memos from the record.
The court, after considering the parties' affidavits and submissions, and noting the limited time available, decided to expunge the specified internal memos from the record. The court did not provide detailed reasoning in this interim ruling, indicating that reasons would be given later.
Legal principles established
#- Internal memos of a public body not properly before the court may be expunged upon application.
- Courts can order removal of documents from the record without full reasoning in interim rulings.
- Parties must ensure documents attached to affidavits are properly admissible before filing.
- The Supreme Court can act swiftly on procedural motions in election petitions due to tight timelines.
Court orders
#- 1.The following documents are expunged from the record: (a) The internal memo dated September 5, 2017 from the 1st respondent to the Chief Executive Officer, Mr Ezra Chiloba marked NM-3 annexed to the Affidavit of Njonjo Mue sworn on November 5, 2017. (b) The Internal memo dated October 9, 2017 from a former Commissioner of the 2nd respondent, Ms Roseylne Akombe to the 1st respondent marked NM-10 annexed to the affidavit of Njonjo Mue sworn on November 5, 2017. (c) The Internal Memo dated October 14, 2017 from the Chief Executive Officer of the 1st respondent addressed to the Directors, Managers, CEMS and CECs of the 2nd respondent marked as NM-12 annexed to the affidavit of Njonjo Mue sworn November 5, 2017. (d) Internal Memo dated October 6, 2017 from a former Commissioner of the 2nd respondent, Ms Roseylne Akombe to the 1st respondent marked as NM-13 annexed to the affidavit of Njonjo Mue sworn on November 5, 2017. (e) The Internal Memo dated October 16, 2017 from a former Commissioner of the 2nd respondent, Ms Roselyn Akombe to the 1st respondent marked as PA-7 annexed to the affidavit of Perpetua Adar sworn on November 5, 2017.
- 2.There shall be no orders as to costs.
- 3.The reasons for this decision shall be given on notice.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- not specified in the judgment
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 following documents are expunged from the record: (a) The internal memo dated September 5, 2017 from the 1st respondent to the Chief Executive Officer, Mr Ezra Chiloba marked NM-3 annexed to the Affidavit of Njonjo Mue sworn on November 5, 2017.
There shall be no orders as to costs.
The reasons for this decision shall be given on notice.
Key timeline
#Practical implications
#Scrutinize affidavit annexures before filing
This ruling shows courts will remove internal documents from public bodies if they are not properly before the court. When attaching documents to affidavits in election petitions, verify their admissibility and relevance. Failure to do so risks expungement, which can weaken your case and waste time.
Protect internal communications in litigation
If your company is involved in litigation, internal memos attached to court filings can be challenged and removed. Ensure your legal team reviews any documents before they are submitted. This ruling reinforces that courts will act to protect sensitive internal communications from being used improperly.
Know what documents can be used in court
If you are a party to a case, not every document you have can be used in court. The court can order documents removed if they are not properly presented. Always consult your lawyer before attaching any internal or confidential documents to affidavits to avoid them being struck out.
Frequently asked questions
#What does it mean to expunge documents from a court record in Kenya?+
Expunging means the court orders those documents removed from the official case file. They cannot be used as evidence or referred to in the case. In this ruling, the Supreme Court removed five internal IEBC memos from the record.
Why did the Supreme Court remove IEBC internal memos in Kenya?+
The court did not give detailed reasons in this interim ruling, but it ordered the memos expunged after considering the parties' submissions. The court said it would provide reasons later. The memos were attached to affidavits by petitioners in an election petition.
Can internal memos be used as evidence in Kenyan courts?+
Yes, but they must be properly before the court. If they are attached to affidavits without proper foundation or are challenged, the court can order them removed. This case shows that courts will act to expunge documents that are not properly admissible.
What is a notice of motion in Kenyan law?+
A notice of motion is a formal request to the court for a specific order, filed by a party in an existing case. In this case, the applicants filed a notice of motion on November 11, 2017, asking the court to remove the IEBC memos from the record.
Cite this brief
#Cite this brief
Caselaw, "Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others", Case Analysis (2017). Election Petition 4 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2017/28/eng@2017-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.