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Case Brief · caselaw.co.ke
Supreme CourtPartially AllowedElection Petition 4 of 2017

Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others

Supreme Court of Kenya
14 November 2017
1,236 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Late filing is excusable only if no prejudice results and strict compliance remains the rule.

What this practically means

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In a presidential election petition, the Supreme Court allowed documents filed one day late because two complete petition sets were timely and the late papers caused no harm to the other side. The court warned that this leniency is not a license for habitual late filings. It also removed a reference to an affidavit that was never actually filed, but kept other affidavit paragraphs that didn't depend on the missing document.

Executive summary

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This is a ruling on a notice of motion by the 3rd respondent in a presidential election petition, seeking to strike out various documents and paragraphs of affidavits filed by the petitioners Njonjo Mue and Billy Atudo. The 3rd respondent argued that certain volumes of documents were filed on November 7, 2017, one day after the statutory deadline of November 6, 2017, and that paragraphs of affidavits referring to a non-existent affidavit of James Gondi should be struck out. The petitioners conceded the error regarding James Gondi's affidavit but argued that two complete sets of the petition were filed on time, and the late filing was due to registry advice. The 1st respondent supported the petitioners, citing long queues at the registry. The Supreme Court, in a unanimous ruling, declined to strike out the late-filed documents, finding that two complete sets were filed on time and the 3rd respondent would suffer no prejudice. However, the court struck out the reference to James Gondi's affidavit at paragraph 76 of Njonjo Mue's affidavit, as its non-filing was admitted. The court emphasized that while it reluctantly accepted the explanation for the delay, this should not become a precedent for routine late filings. No costs were awarded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the documents filed on November 7, 2017, one day after the deadline, should be struck out for being filed out of time
  2. 2.Whether paragraphs 74, 75, and 76 of Njonjo Mue's affidavit and paragraphs 30, 31, and 61 of Billy Atudo's affidavit should be struck out for lacking legal foundation

Key legal issues

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01

Whether documents filed one day after the statutory deadline in a presidential election petition should be struck out

Holding

The court declined to strike out the documents, finding that two complete sets were filed on time and the late-filed documents caused no prejudice to the 3rd respondent.

Reasoning

The court acknowledged that Rule 7 of the Supreme Court (Presidential Election Petition) Rules, 2017 requires strict compliance with filing deadlines, but recognized that due to the voluminous nature of materials in presidential election petitions, mix-ups can occur. Since two complete sets were filed by the deadline and the late documents were served within time, the court exercised discretion to admit them, emphasizing that this should not become a precedent for routine late filings.

02

Whether paragraphs of affidavits referring to a non-existent annexed affidavit should be struck out

Holding

The court struck out only the reference to the non-existent affidavit of James Gondi at paragraph 76 of Njonjo Mue's affidavit, but not the other paragraphs.

Reasoning

Counsel for the petitioners conceded that the non-filing of James Gondi's affidavit was an inadvertent error and had no objection to striking out that reference. However, the other paragraphs (74, 75 of Njonjo Mue's affidavit and 30, 31, 61 of Billy Atudo's affidavit) were not dependent on the struck-out annexures and therefore remained.

Legal principles established

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  • Strict compliance with filing deadlines remains mandatory, but courts may excuse minor delays if no prejudice results.
  • In presidential election petitions, voluminous materials increase the risk of mix-ups, justifying some procedural flexibility.
  • A late-filed document will not be struck out if two complete petition sets were submitted on time and the opposing party is unharmed.
  • An affidavit paragraph referencing a non-existent annexure must be struck out if its absence is conceded, but other paragraphs may remain.
  • Leniency for late filings in exceptional cases should not become a routine practice or precedent.
  • No costs are awarded when both parties share procedural responsibility and the ruling is split.

Court orders

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  1. 1.Prayers (a)-(f) with regard to the striking off of various documents from the affidavits sworn by Njonjo Mue and Billy Atudo on November 5, 2017 are hereby disallowed
  2. 2.Prayer seeking the striking off of the reference to an affidavit by James Gondi at paragraph 76 of the affidavit sworn by Njonjo Mue on November 5, 2017 is hereby allowed
  3. 3.As a consequent to order (a) above, the prayer seeking the striking off of paragraphs 74 and 75 and 30, 31 and 61 of the affidavits sworn by Njonjo Mue and Billy Atudo respectively, are hereby disallowed
  4. 4.There shall be no orders as to cost

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. Ndung'uSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
Jurisdiction invoked
Article 140 of the Constitution

Relief refused

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Striking out of documents in Volumes 1, 2, 9, 10A, 10B, and 12B

The court found that two complete sets of petitions were filed on time and the 3rd respondent would suffer no prejudice

Striking out of paragraphs 74, 75 of Njonjo Mue's affidavit and paragraphs 30, 31, 61 of Billy Atudo's affidavit

These paragraphs were not dependent on the struck-out reference to James Gondi's affidavit

Costs

There shall be no orders as to cost

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We find that the 3rd respondent will suffer no prejudice if we admit the contentious documents as properly filed
p. 5 Admission of late-filed documents
Our reluctant acceptance of the explanation of the delay in filing all documents on time in this case is guided by that fact but that acceptance should never be used to make late filings a common feature in our judicial system not least in this court
p. 5 Strict compliance with procedural rules
Prayers (a)-(f) with regard to the striking off of various documents from the affidavits sworn by Njonjo Mue and Billy Atudo on November 5, 2017 are hereby disallowed
p. 5 Final orders on striking out documents
Prayer seeking the striking off of the reference to an affidavit by James Gondi at paragraph 76 of the affidavit sworn by Njonjo Mue on November 5, 2017 is hereby allowed
p. 5 Striking out reference to non-existent affidavit
There shall be no orders as to cost
p. 5 Costs order

Key timeline

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2017-11-06
Statutory deadline for filing petition documents
2017-11-07
Petitioners filed additional document volumes one day late
2017-11-27
Supreme Court of Kenya delivered ruling on the striking-out application

Practical implications

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For lawyers

File on time or risk exclusion

Always file the required number of complete petition sets by the statutory deadline. If a mix-up occurs, immediately serve all late documents on respondents and show no prejudice. The court will reluctantly admit late filings but warns not to rely on this leniency as a pattern. For affidavits, verify every referenced annexure is actually filed; otherwise, concede and move to strike the specific reference only.

For businesses

Election challenge risks remain

Businesses monitoring electoral litigation should note that procedural irregularities alone won't derail a petition if the core case is served on time. However, the court's warning against routine late filings means future election petitions with persistent delays could be dismissed outright. Businesses involved as third parties should object early to preserve their rights and prevent prejudice.

For individuals

Court excuses minor delays

If you are a party to an election petition and file evidence one day late, the court may accept it—but only if you already filed two complete copies on time, the opposing side isn't harmed, and you show it was an honest mistake. Don't assume you can file late repeatedly; the court explicitly says this is not a routine exception. Always aim for the deadline.

Frequently asked questions

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What happens if I file court documents one day late in a Kenyan election petition?+

The Supreme Court may still accept the late filing if you already submitted two complete petition sets on time, the delay causes no prejudice to the other side, and it was an honest mix-up. However, the court warns this should not become a common practice.

Can an affidavit be struck out for referencing a missing annexure in Kenya?+

Yes, if the missing annexure is conceded, the specific reference in the affidavit is struck out. But other paragraphs in the same affidavit that don't rely on the missing document can remain, as happened in Njonjo Mue v. IEBC.

Does the Kenyan Supreme Court have discretion to extend time for filing election petition documents?+

Yes, the court has discretion, but it exercises this power reluctantly. It will only do so if the delay is minimal, the late filing causes no prejudice, and the petitioner shows strict compliance with the deadline in other respects.

What is the cost rule in Kenyan election petition procedural rulings?+

The court may order no costs be paid, especially when the outcome is split and both sides share some responsibility, as seen in Njonjo Mue v. IEBC. This is not automatic; each case depends on its circumstances.

Cite this brief

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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/2017/30/eng@2017-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.