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MagistrateStruck OutNot stated in the judgment

Kennedy Kemboi Lel v Singoei Pauline & 4 others [2013] KEMC 23 (KLR)

High Court of Kenya (Election Petition) - decided by a Principal Magistrate at Kapsabet
9 October 2013
4,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan voter's election petition was struck out because he never served it on the respondents, even though the court agreed he had every right to file it.

What this practically means

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Executive summary

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This is a ruling on preliminary objections dated 12.9.2013 and 6.9.2013 filed by counsel for the 1st-3rd and 4th Respondents respectively against an election petition filed by Kennedy Kemboi Lel challenging the nomination and gazettement of women gender-top-up nominees to the Nandi County Assembly. The Respondents argued lack of locus standi, want of jurisdiction (nomination disputes lying with the IEBC and Political Parties Tribunal), mootness, res judicata, misjoinder, late deposit of security, and non-service. The court framed four issues and held: (1) the Petitioner, a male registered voter, had locus under Article 258 of the Constitution to sue on behalf of a group or in the public interest; (2) the court had jurisdiction under section 75(1)(a) of the Elections Act because the nominees had already been gazetted and sworn in, taking the dispute outside the IEBC dispute-resolution mechanism; (3) late deposit of security was not fatal, section 78(3) contemplating only total failure to deposit, and the overriding objective applied; but (4) failure to serve the petition was fatal - Rule 13(1) is mandatory, the Respondents only obtained copies from the registry, and the Petitioner took no curative steps. Adopting Muchemi J's reasoning in the Cidi case that an unserved petition is 'a petition that never was', the court struck out the petition, awarded costs to the Respondents, ordered that the security deposit not be released until taxation of the bill of costs, and directed that copies of proceedings be availed upon payment of requisite fees.

Questions the Court framed

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

  1. 1.If the Petitioner had Locus Standi to file this Petition.
  2. 2.If this court has jurisdiction to entertain this Petition by virtue of Provisions of Section 74(1) of Elections Act.
  3. 3.If failure to pay security deposit in time renders this Petition defective.
  4. 4.If lack of service of the Petition renders it defective and for it to be dismissed.

Key legal issues

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01

Locus standi of the Petitioner

Holding

The Petitioner, a Kenyan citizen, resident of Nandi County and registered voter, had locus standi under Article 258 of the Constitution notwithstanding that he is male and the petition concerned nomination of women to the County Assembly.

Reasoning

Article 258(1) allows every person to institute proceedings claiming contravention of the Constitution, and clause (2) permits suits in the interest of a group or in the public interest. The Petitioner's gender did not bar him from suit on behalf of female nominees; as a voter he had an interest in democratic and meritorious representation, and failure to enjoin party leaders did not oust his locus.

p. 5
02

Jurisdiction of the court over the nomination dispute

Holding

The court had jurisdiction because the nominees had already been gazetted and sworn in as members of the County Assembly, taking the dispute outside the IEBC dispute-resolution mechanism and within section 75(1)(a) of the Elections Act.

Reasoning

Section 74(3) requires nomination disputes to be determined before the nomination or election and does not envisage the Commission's Dispute Resolution Committee resolving disputes over nominees already gazetted. Nor is the High Court's jurisdiction an appeal from the tribunal. Once nominees became members of the County Assembly, section 75(1)(a) clothed this court with jurisdiction over disputes relating to representation to the County Assembly.

p. 6
03

Late deposit of security for costs

Holding

Late payment of security, as opposed to total failure to pay, was not fatal; section 78(3) contemplates only a situation where no deposit has been paid at all, and the court must have regard to the overriding objective.

Reasoning

The Petitioner paid the security about two months after filing and never invoked Rule 20 for extension of time; the court did not extend time on its own motion. However, following Muchemi J in the Cidi case, a petitioner who deposits security out of time is treated differently from one who fails to deposit at all, and the late deposit did not of itself warrant striking out the petition.

p. 6
04

Non-service of the petition

Holding

Failure to serve the petition was fatal. Rule 13(1) uses the mandatory word 'shall', non-service is not a mere irregularity, and the petition was struck out on this ground.

Reasoning

The respondents only learnt of the petition through the gazette notice and mention notices, obtaining photocopies from the registry to file their responses. The Petitioner did not deny non-service and took no steps to cure it. Adopting Muchemi J's reasoning that an unserved pleading is a petition that never was, the court found the petition could not stand.

p. 7

Legal principles established

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  • Any person, including a male voter, may institute proceedings under Article 258 of the Constitution claiming contravention of the Constitution, including on behalf of a group or in the public interest.
  • Failure to deposit security within the time allowed is not fatal to an election petition, unlike total failure to deposit security; the court must have regard to the overriding objective.
  • A pleading filed but not served on the opposite party has no legal force and cannot be dealt with by the court; non-service is not a mere irregularity.

Court orders

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  1. 1.The Petition is struck out for non-compliance with the law (lack of service).
  2. 2.Costs are awarded to the Respondents.
  3. 3.Security deposited by the Petitioner not to be released till the bill of costs is taxed.
  4. 4.Copies of proceedings to be availed to parties and counsels upon payment of requisite cost.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 75(1)(a) of the Elections Act; Article 258 of the Constitution of Kenya 2010

Relief refused

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Relief sought in the petition challenging gazettement of County Assembly gender-top-up nominees

Petition struck out for blatant non-compliance with the mandatory requirement of service under Rule 13(1)

p. 7

Costs

Costs awarded to the Respondents; costs follow the event. The security deposited by the Petitioner is not to be released till the bill of costs is taxed.

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.

This provision in the constitution allows anyone to bring a matter to court including the Petitioner herein.
p. 5locus standi under Article 258
I do find by virtue of the nominees now already being members of Nandi County Assembly, this court has jurisdiction to hear and determine this petition.
p. 6jurisdiction over post-gazettement nomination disputes
The case of a Petitioner who deposits security out of time limit provided by the rules will be treated differently form that of a Petitioner who fails to deposit the security at all.
p. 6late vs total failure to deposit security
The upshot of the Ruling is that I do find the Preliminary Objection raised by 1st, 2nd, 3rd and 4th Respondent on limb of lack of service of the Petition to have merit and consequently the Petition is hereby struck out for non-compliance with the law and costs are awarded to the Respondents.
p. 7disposition - striking out for non-service and costs
I do order security deposited by Petitioner not to be released till the bill of costs is taxed.
p. 8final order staying release of security deposit

Issues in the judgment

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minor

Case number and full names of the parties (1st-5th Respondents) are not stated in the judgment text.

minor

The text contains a garbled/duplicated passage quoting section 74(2) and Article 88(4).

minor

The document is described as a Ruling though it determines the petition; the name of the cited authority appears variously as Anthony Salau, Antony Silabe and Salau case.

minor

The Respondents' own grounds characterize the Petitioner as both applicant-side and Respondent-side inconsistently ('submissions of Applicants' vs 'response of the Respondent to the objections').

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, "Kennedy Kemboi Lel v Singoei Pauline & 4 others [2013] KEMC 23 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/23/eng@2013-10-09

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