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MagistrateOtherNot stated in the judgment

Leura Lodungokiok v Lesoipa Shadrack Nakini & 5 others [2013] KEMC 4 (KLR)

Chief Magistrate's Court / Magistrate's Court (election petition, original jurisdiction)
2 May 2013
CNC.N. Ndegwa
615 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a case-management ruling delivered at Maralal on 2nd May 2013 by C.N. Ndegwa, Ag. SPM, in an election petition filed on 28th March 2013. The court confirmed that the petition was served within the 15-day period required by Section 76(1)(a) of the Elections Act 2011, the 1st Respondent being served on 5th April 2013 and the 6th Respondent on 2nd April 2013. The 2nd to 6th Respondents filed a joint response on 26th April 2013, though only the 2nd and 4th Respondents filed Replying Affidavits. The 1st Respondent filed an application dated 30th April 2013 seeking extension of time to file his response and answer. Applying Rule 14(1) of the Election (Parliamentary and County Elections) Petition Rules 2013, which requires responses within 14 days of service, the court found on a prima facie basis that the responses of both the 2nd to 6th Respondents and the 1st Respondent were filed out of time, a position conceded by counsel. Balancing the overriding objective of the Election Petition Rules 2013 - the just, expeditious and proportionate resolution of election disputes - against the strict statutory timelines, the court issued directions: the petitioner to respond to the extension application by 6th May 2013 with service by 7th May; all parties at liberty to file further applications with responses by 10th May; no applications after 7th May; interlocutory applications to be heard on 13th May; and the pre-trial conference under Rule 17(1) fixed for 14th May 2013. A right of appeal within 30 days was noted. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the responses filed by the 2nd to 6th Respondents, filed on 26th April 2013, were filed out of time under Rule 14(1) of the Election (Parliamentary and County Elections) Petition Rules 2013
  2. 2.Whether the 1st Respondent should be granted an extension of time to file his response and answer to the petition under his application dated 30/4/2013
  3. 3.What directions should govern the filing and hearing of interlocutory applications and the pre-trial conference, having regard to the strict statutory timelines for election disputes

Key legal issues

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01

Timeliness of responses under Rule 14(1) of the Election (Parliamentary and County Elections) Petition Rules 2013

Holding

All the responses, including the 1st Respondent's, were filed out of time; the 1st Respondent's late response required an application for extension of time

Reasoning

Under Rule 14(1), responses ought to have been filed within 14 days of service. The 1st Respondent was served on 5th April 2013 and should have filed by 18th April 2013; the 6th Respondent was served on 2nd April 2013 with a deadline of 15th April 2013. The joint response of the 2nd to 6th Respondents was filed on 26th April 2013, beyond the deadline, and counsel conceded this.

p. 1
02

Case management in election petitions balancing fairness and statutory timelines

Holding

All parties should be given time to make whatever applications they deem appropriate before the hearing, subject to the strict election timelines

Reasoning

The court invoked the overriding objective of the Election Petition Rules 2013 to facilitate just, expeditious and proportionate resolution of disputes. It therefore allowed the petitioner 4 days to respond to the 1st Respondent's extension application, gave other parties liberty to file applications within the same frame, capped the filing window at 7th May 2013, and fixed hearing and pre-trial dates.

p. 2

Legal principles established

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  • The overriding objective of the Election Petition Rules 2013 is to facilitate just, expeditious and proportionate resolution of election disputes, but the court must remain alive to the strict statutory timelines within which election disputes must be determined

Court orders

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  1. 1.Petitioner given 4 days to file and serve his response to the application dated 30/4/2013; last day of filing Monday 6th May 2013 and last day of service Tuesday 7th May 2013
  2. 2.All other parties at liberty to file whatever applications they deem appropriate within the same time frame, with service within the same frame and any responses filed and served by Friday 10th May 2013
  3. 3.No other application to be filed after 7th May 2013
  4. 4.All interlocutory applications to be heard together on Monday 13th May 2013
  5. 5.Pre-trial conference to identify the issues for determination and other issues under Rule 17(1) of the Election Petition Rules to be held on Tuesday 14th May 2013
  6. 6.Right of appeal within 30 days

The bench

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

CN
majority

Wrote the judgment

Jurisdiction invoked
Elections Act 2011 and Election (Parliamentary and County Elections) Petition Rules 2013 (election petition, first-instance jurisdiction)

Relief refused

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Deeming of responses already filed out of time as duly filed without further process

The court treated the late filings as prima facie out of time and directed that parties instead make whatever applications they deem appropriate within the set timelines

p. 2

Costs

No costs order made

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.

In the interest of justice and considering that the overriding objective of the Election petition Rules 2013 is to facilitate the just, expeditions and proportionate resolution of election disputes, all the parties should be given time to make whatever applications they deem appropriate before the hearing can take off.
p. 2overriding objective of Election Petition Rules
The court must however be alive to the fact that election disputes must be determined within strict time lines.
p. 2strict statutory timelines for election petitions
1. As regards the application dated 30/4/2013, the petitioner is given 4 days to file and serve his response within the next 4 days. For the avoidance of doubt and for clarity, the last day of filing his response to the application is Monday 6th May, 2013.
p. 2final orders - directions on the extension application
3. No other application will be filed after 7th May, 2013. 4. All the other interlocutory applications will be heard together on Monday 13th May, 2013. 5. The pre-trial conference to identify the issues for determination and all the other issues specified in Rule 17 (1) of the Election petition Rules will be held on Tuesday 14th May, 2013.
p. 2final orders - case management timetable

Issues in the judgment

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material

The case number/title of the petition and the names of the parties are not stated anywhere in the judgment extract

minor

The application dated 30/4/2013 seeking extension of time for the 1st Respondent was not finally determined in this ruling; directions were issued instead

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Leura Lodungokiok v Lesoipa Shadrack Nakini & 5 others [2013] KEMC 4 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/4/eng@2013-05-02

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