Esposito Franco v Amason Kingi Jeffah, Amina Kale & Electoral Commission of Kenya

Section 21 sits in Part VI of the Act governing election petitions, couched in peremptory language with constitutional underpinning in section 44 of the repealed Constitution. Parliament intended expedition and exclusion of vexatious litigants. The 1979 deletion of the former section 21(4) power to accommodate poor persons confirmed an intention to limit judicial discretion; absent express provision, time cannot be extended.

The court adopted the Karume line of authority that election matters are governed by special procedures which must be strictly followed. The Civil Procedure Act and Order 53 are inferior to and apply only subject to the Constitution. Deposit of security goes to the root of the petition, so the 'technicalities' provision cannot rescue non-compliance.

The first appellate court re-evaluated the affidavit evidence and found the petitioning advocates clueless about section 21 and Rule 12, which designate the Registrar as recipient of the deposit. The claim that clerks denied an opportunity to pay was contradicted by the clerks' affidavits; the petitioner's silence about the alleged cash and reliance on a stranger with a backdated banker's cheque undermined credibility.

The cross-examination order was interlocutory and conditional on terms the appellant did not comply with; questioning the conduct of proceedings after their conclusion is not unprocedural. However, since the advocate did not know the legal requirements, cross-examination of the clerks would have availed nothing.