ELECTORAL COMMISSION OF KENYA & another v AYUB JUMA MWAKWESI [2009] KECA 449 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once an election petition is set for hearing, parties cannot derail it with late applications to strike it out.
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 learned Judge erred in refusing to admit to hearing, and instead striking out, the two notices of motion seeking to strike out the election petition
- 2.Whether an election court that has listed a petition for hearing under section 22 of the National Assembly and Presidential Elections Act can still entertain an interlocutory application to reject the petition in the course of trial
Key legal issues
#Scope of the election court's power under section 22 of the Act and rule 22 of the Election Petition Rules
The election court has a wide, unfettered discretion, governed by the interests of justice, to summarily reject a petition or list it for hearing, and may reject interlocutory applications once the petition has been listed for hearing; the substantive statutory provision overrides rule 22.
Section 19(4) mandates expeditious, priority hearing of election disputes, so parties cannot be permitted to frustrate expeditious disposal. Section 22 permits summary rejection or listing for hearing; once the court has listed the petition, it has exercised that discretion. Rule 22 is procedural, while section 22 is substantive law, and the inherent residuary power to admit applications in the course of trial is exercised only in the interests of justice.
Whether striking-out applications brought late in the trial, after the 2nd appellant had closed his case, should have been admitted
No. The applications were brought after the 2nd appellant had closed his case and the petition had been substantially heard; the change in the petition's character after the returning officer was removed could have been raised during the hearing, and the motions were wantonly brought without a shadow of an excuse.
The hearing date had been fixed long before the Court of Appeal struck out the returning officer's name. The appellants' course unnecessarily prolonged proceedings and evidenced an attempt to buy time so that the petition would be rendered meaningless by effluxion of time. Allowing the appeal would reward the attempt to prevent conclusion of the petition and negate the principle of expeditious disposal.
Limits on summary dismissal of actions - adoption of Dyson v Attorney General
The power to arrest an action and decide it without trial is to be very sparingly used, rarely if ever, except where the action is an abuse of legal procedure or the cause of action is obviously and almost incontestably bad; here the appellants retained their right to be heard at trial, so no injustice arose.
The Court adopted Fletcher Moulton L.J.'s speech in Dyson v Attorney General: a party may be stopped at an interlocutory stage only if the action is wantonly brought without a shadow of an excuse, or where permitting it to proceed through its ordinary stages would vex a party when the action was baseless. The petition was not such a case, and the appellants could still raise their complaints during the petition hearing.
Legal principles established
#- Once an election court has chosen to list an election petition for hearing under section 22 of the National Assembly and Presidential Elections Act, it cannot entertain an interlocutory application to have the petition rejected, save for applications specified in the rules; its discretion to reject or list a petition is wide but must be exercised in the interests of justice and in a manner consistent with the expeditious disposal mandated by section 19(4) of the Act.
Court orders
#- 1.The two consolidated appeals are dismissed
- 2.Costs of the appeals awarded to the 1st respondent Ayub Juma Mwakwesi only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- Election Petition No. 1 of 2008 (ruling and order dated 4th December 2008)
- Jurisdiction invoked
- Appeal under section 23(2) of the National Assembly and Presidential Elections Act Cap 7 and sections 44 and 60 of the former Constitution of Kenya
- Consolidated with
- Civil Appeal No. 275 of 2008 (Mwakwere Chirau Ali v Ayub Juma Mwakwesi & The Electoral Commission of Kenya)
Relief refused
#Admission to hearing of the two notices of motion seeking striking out of the election petition
The motions were wantonly brought without a shadow of an excuse and their allowance would prolong proceedings and defeat the expeditious disposal of election petitions
Costs
Appeals dismissed with costs to the 1st respondent Ayub Juma Mwakwesi only
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.
Under section 22 of the Act the court can summarily reject the petition or in the alternative list it for hearing. The Courts discretion to act either way is wide and unfettered, the main consideration, of course, being the interests of justice.
The motions were, in our view wantonly brought without a shadow of an excuse. As the appellants could still have their day in court, they could not complain that they had been driven from the judgment seat without the court having considered their right to be heard.
this power of arresting an action and deciding it without trial is one to be very sparingly used and rarely, if ever, excepting in cases where the action is an abuse of legal procedure.
For the foregoing reasons, these two consolidated appeals are hereby ordered dismissed with costs to the 1 st respondent Ayub Juma Mwakwesi only.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ELECTORAL COMMISSION OF KENYA & another v AYUB JUMA MWAKWESI [2009] KECA 449 (KLR)", Case Analysis (2009). Civil Appeal No. 272 of 2008 (consolidated with Civil Appeal No. 275 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/449/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.