William Kinyanyi Onyango v Independent Electoral And Boundary Commission & 2 others [2013] KEMC 17 (KLR)
The bottom line
#An election petition was struck out because it omitted the declared results and the petitioner's address, showing strict court rules must be followed exactly.
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 petitioner has complied with Rule 10.
- 2.Whether non-compliance with Rule 10 renders the Petition incurably defective and fatally incompetent for want of legal format and/or legal content as to cause it to be struck out or dismissed.
- 3.Whether the petition fails to disclose any cause of action.
- 4.Whether the petitioner is challenging the election on the grounds of corruption.
Key legal issues
#Compliance with Rule 10 of the Election Petition Rules, 2013
The petitioner complied with neither Rule 10(1)(a) (petitioner's own address) nor Rule 10(1)(c) (results of the election as declared); the advocate's address did not satisfy Rule 10(1)(a) as that is provided for separately in Rule 10(1)(f).
The court perused the petition and found that the declared results were not stated in its body, nor was the petitioner's own address given. Counsel for the petitioner, though not expressly, conceded non-compliance by framing the challenge as one against the process only. The Rule's requirements, published in Legal Notice No. 44 of 2013, were held mandatory and not cured by affidavits or by Article 159(2)(d).
Effect of non-compliance with Rule 10
Non-compliance renders the petition incurably defective and fatally competent to be struck out; following Mututho v Kihara, without the results the essential element of a petition is missing and particulars or evidence cannot validate it.
The court reasoned that results are the crux of any election petition since the process is challenged because it would have affected the result. Where a clear procedure for redress is prescribed by statute, it must be followed (Speaker v Karume). Supreme Court guidance on Article 159(2)(d) in the Presidential Election Petition confirms it does not oust procedural imperatives.
Whether the corruption/bribery allegation saved the petition
Although the supporting affidavit alleged bribery via allotment letters, the petition body did not plead corruption, and in any event a challenge to the process remains linked to the result; the bribery allegation could not cure non-compliance with the mandatory format.
The court found no mention of alleged corruption in the body of the petition; the allegation appeared only at paragraph 31 of the supporting affidavit. Even treating corruption as a ground to challenge the process, the process is still linked to the result sought to be nullified. Without pleaded results, evidence of irregularities cannot be related to an outcome.
Legal principles established
#- Rule 10(1)(a) and (c) of the Elections (Parliamentary and County Elections Petition) Rules, 2013 are mandatory; non-compliance renders an election petition incurably defective and fatally incompetent.
- The declared results are the crux of any election petition, even where the process rather than the result is impugned.
- Article 159(2)(d) does not excuse compliance with mandatory procedural requirements for election petitions.
Court orders
#- 1.The application to strike out or dismiss the petition is allowed and the petition is struck out
- 2.Costs of the petition to the 1st, 2nd and 3rd Respondents, capped at a maximum of the Kshs. 100,000 deposited in court as security for costs
- 3.Parties to agree on costs failing which the Respondents to file bills of costs and the court to award an amount not exceeding the Kshs. 100,000 deposited in court
- 4.Each party to bear their own costs in the Petitioner's withdrawn application of 14th May 2013 (costs of which reserved to this ruling)
- 5.The parties have a right of appeal of 14 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election petition over the election of the County Representative for Kariobangi South Ward (1429) under Article 87(1) of the Constitution, the Elections Act, 2011 and the Elections (Parliamentary and County Elections Petition) Rules, 2013
Relief refused
#Petitioner's Notice of Motion dated 14th May 2013 seeking recount and scrutiny of registers and votes cast at Kariobangi South Primary School and Uhuru Primary School
The application was abandoned by the Petitioner at the time of directions; costs of it were dealt with by the ruling with each party bearing its own costs as charging the Petitioner with costs would be punitive.
Costs
Petition struck out with costs to the 1st, 2nd and 3rd Respondents, capped at a maximum of the Kshs. 100,000 deposited in court as security for costs (parties to agree, failing which Respondents to file bills of costs); each party to bear their own costs on the Petitioner's withdrawn application.
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.
In the view of what I have stated herein above the petition is incurably defective and fatally incompetent for want of legal format and or legal content.
The upshot of this ruling is that the application to have the petition struck out or dismissed is allowed, the petition is accordingly struck out with costs to the 1st, 2nd and 3rd Respondents.
On the costs awarded on striking out the petition the court shall cap the same to a maximum of the 100,000/- deposited in court as security on cost.
Each party shall bear their costs in that application.
The parties have a right of appeal of 14 days
Issues in the judgment
#The record states that counsel for the Petitioner (Mr. Were) urged the court to strike out the petition, apparently an error for the 3rd Respondent's counsel (Mr. Wanjohi) who opposed the petition.
The court raised a fourth issue (whether the petitioner is challenging on grounds of corruption) and found the allegation only in the supporting affidavit, not the body of the petition, yet did not separately make an express finding on the third framed issue (failure to disclose cause of action) beyond the general finding of incurable defectiveness.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kinyanyi Onyango v Independent Electoral And Boundary Commission & 2 others [2013] KEMC 17 (KLR)", Case Analysis (2013). Election Petition (Kariobangi South Ward, 2013) — as per judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/17/eng@2013-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.