Gerald Iha Thoya v Chiriba Daniel Chai & another [2018] KECA 637 (KLR)
The bottom line
#Kenya's High Court confirmed that once six months pass, an election petition is dead — no court can revive it, even when earlier rulings were wrong.
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 amendment of the petition extinguished the original petition
- 2.Whether the original petition survived the striking out of the amended petition
- 3.The effect of non-compliance by a petitioner with rules 8 and 12 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017
- 4.The import of Article 105(2) of the Constitution on this appeal
- 5.Costs
Key legal issues
#Effect of failure to serve the memorandum of appeal
Service was not effected on the 2nd Respondent, but the failure was curable; time was enlarged and service deemed effected, so the striking-out application failed
The court found on the evidence that no proper service of the memorandum of appeal was made. However, guided by the overriding objective and Article 159(2)(d), and following Kiangoi, Kakai and Shabbir Ali Jusab, it held that failure to serve was not fatal. The memorandum was contained in the record of appeal which was served in time, and under Rule 19(1) the court enlarged time for service, deeming the memorandum properly served.
Effect of non-compliance with Rules 8 and 12 (statement of results)
Failure to state results in the petition and supporting affidavit is not fatal where the results are before the court; the original petition was a complete pleading
Following the Court of Appeal in Martha Wangari Karua, the court held that election petitions are sui generis and procedural infractions that are curable and cause no prejudice should not defeat the petition. The winner's results were declared in the original petition and Forms 36A and 36B were annexed, so the respondents were not prejudiced. Non-compliance with Rule 8(1) does not go to jurisdiction.
Whether the amendment extinguished the original petition
A successful amendment supersedes the original pleading for issues, but where the amendment is struck out the original petition is revived and remains on record
The court rejected Ringera J's view that striking out an amended pleading leaves no valid pleading on record, preferring Eastern Radio Services and Odunga J's reasoning in Phoebe Wangui. An amendment improves a document; it does not repeal it. Where the amended petition is struck out, the original petition stands and should be heard if competent.
Validity of striking out the amended petition for want of a fresh supporting affidavit
The Election Court was right to strike out the amended petition because it was incomplete without at least an explanatory affidavit adopting the original supporting affidavit
The court held that no fresh supporting affidavit was needed, but an affidavit 'uploading' the original supporting affidavit and witness statements should have accompanied the amended petition. Since none was filed, there was no proper pleading before the Election Court as regards the amendment, and striking out the amended petition was correct; the error was in failing to revert to the original petition.
Import of Article 105(2) and the six-month timeline
The six-month timeline is cast in stone; once it lapses the election court's jurisdiction is extinguished and the appeal fails notwithstanding that the striking out was erroneous
Bound by the Supreme Court's decision in Lemanken Aramat under Article 163(7), the court held that an appellate court cannot remit a petition for hearing after six months from lodgment. The Court of Appeal's contrary view in Charles Kamuren was upset by Lemanken Aramat. The petition in this case was filed on 6th September 2017 and should have been determined by 6th March 2018; it had therefore died and could not be revived.
Legal principles established
#- Where an amended petition is struck out, the original petition is not obliterated but is revived, and if capable of being heard the election court should hear and determine it on merit
- Failure to state or tabulate the results in an election petition and supporting affidavit is not fatal where the results are available in annexures or the respondents' material, per Martha Wangari Karua
- Once the six-month period under Article 105(2) of the Constitution and Section 85 of the Elections Act lapses, the election court has no jurisdiction to hear and determine the petition, and an appellate court cannot remit a petition for hearing after the lapse
- An election petition may be amended for minor purposes other than questioning a return on an allegation of an election offence; amendments that remodel the petition are restricted to within 28 days of the declaration of results
- Failure to serve the memorandum of appeal within the prescribed time may be cured by enlargement of time under Rule 19(1), and appeals should not be struck out on such procedural technicalities
Court orders
#- 1.The 2nd Respondent's application dated 8th February 2018 seeking to strike out the appeal is dismissed
- 2.It is declared that the Election Court was correct in striking out the amended petition
- 3.It is declared that the Election Court erred in failing to hear the election petition based on the Appellant's original petition
- 4.The appeal is dismissed as the Election Court no longer has jurisdiction to hear the election petition after the lapse of the six months
- 5.Each party to bear own costs in respect of this appeal and the proceedings before the Election Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Malindi (Election Court)
- CMC Election Petition No. 2 of 2017
- Jurisdiction invoked
- Article 164(1A)(2) of the Constitution (appeal from election court), the Elections Act and Rule 34 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017
Relief refused
#An order directing the Election Court to proceed to hear the petition
The six-month constitutional and statutory timeline for hearing and determining an election petition had lapsed, extinguishing the election court's jurisdiction
Costs of the appeal awarded to the Appellant
Although the appeal failed, costs to the respondents would be unconscionable as the petition was erroneously struck out
Costs
Each party to bear own costs in respect of this appeal and the proceedings before the Election Court.
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.
i) The 2nd Respondent's application dated 8th February, 2018 seeking to strike out the appeal has no merit and the same is dismissed; ii) The Election Court was correct in striking out the amended petition; iii) However, the Election Court erred in failing to hear the election petition based on the Appellant's original petition; iv) This appeal fails and is dismissed as the Election Court no longer has jurisdiction to hear the election petition; and v) Each party to bear own costs in respect of this appeal and the proceedings before the Election Court.
The period is cast in stone and once the six months lapse the election court no longer has any powers to hear and determine the election petition. It must down its tools without prompting.
where an amended petition is struck out, the original petition is not obliterated. The original petition is revived by the act of striking out the amendments and if the original petition is capable of being heard, then the election court should hear and determine the same on merit.
failure to tabulate the results of the candidates in a petition and or a supporting affidavit is not fatal to the petition particularly where the results are available in the annexures to the supporting affidavit or the responses of the respondents.
A case should only be struck out where it is hopelessly defective and no amount of panel beating can salvage it.
Indeed, there is no longer in existence a petition that I can direct the Election Court to hear. The petition died on the date the six months period lapsed.
Issues in the judgment
#Internal inconsistency in the date of the amendment: the judgment refers to the petition 'amended on 18th October, 2017' in one passage and states the amendment was done on 18th September 2017 earlier, and the consent order of 11th October 2017 allowed filing within 7 days thereafter
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Gerald Iha Thoya v Chiriba Daniel Chai & another [2018] KECA 637 (KLR)", Case Analysis (2018). Election Petition Appeal No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/637/eng@2018-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.