Joseph Kiponda v Independent Electoral & Boundaries Commission & Stephen Bahati Mulanda (Election Petition 1 of 2013) (Constitutional and Human Rights) [2013] KEMC 65 (KLR)
The bottom line
#A Malindi court allowed an elected ward representative to stay in office during an election petition, because voters' representation outweighed the challenger's request.
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 court should restrain the 2nd respondent from assuming office as the Ganda Ward County Assembly Representative pending the hearing and determination of the petition
- 2.Whether the court should restrain the 2nd respondent from undertaking any functions as the Ganda Ward County Assembly Representative pending determination of the petition
Key legal issues
#Whether an interlocutory injunction should issue restraining the 2nd respondent from acting as Ganda Ward County Assembly Representative pending the petition
The application was dismissed. Although a prima facie case was shown, no irreparable loss was demonstrated and the balance of convenience favours the ward remaining represented during the pendency of the petition.
The court applied the Giella v Cassman Brown principles. The 2nd respondent had already taken the oath of office, so the prayer to restrain him from assuming office was overtaken by events. On irreparable harm, the presumption that elections were properly conducted can only be rebutted at full trial; granting the injunction would amount to premature determination of the petition. The interest of the electorate of Ganda ward in continued representation outweighed the petitioner's claims, and no prejudice would be occasioned to the petitioner if status quo were maintained.
Legal principles established
#- In an election petition the presumption is that the elections were properly conducted unless the contrary is proven, and such proof cannot be adduced at an interlocutory stage
- An election petition is not an ordinary civil suit and the petitioner bears a heavier burden than a plaintiff in a civil suit
- In deciding whether to grant an injunction in an election petition, the court must consider, in addition to the Giella principles, the will or interest of the electorate
Court orders
#- 1.The application dated 26/3/13 is dismissed
- 2.Costs of the application shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original election petition jurisdiction over the election of the Ganda Ward County Assembly Representative (under the applicable election petition legislation, not specifically cited in the extract)
Relief refused
#Interlocutory injunction restraining the 2nd respondent from assuming office and undertaking functions as Ganda Ward County Assembly Representative pending determination of the petition
The 2nd respondent had already taken the oath of office so the first limb was overtaken by events; no irreparable loss was demonstrated and the balance of convenience favours the electorate's continued representation
Costs
Costs of the application shall be in the cause.
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 an Election petition the presumption is that the elections were properly conducted unless the contrary is proven.
an election petition is no ordinary civil suit and that the petitioner has a heavier burden than that of the plaintiff in a civil suit
In view of the foregoing, it is my finding that the application dated 26/3/13 lacks merit. The same is hereby dismissed. Costs of the application shall be in the cause.
Issues in the judgment
#The case number and full party names of the petition are not stated in the judgment text, making identification of the matter incomplete
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kiponda v Independent Electoral & Boundaries Commission & Stephen Bahati Mulanda (Election Petition 1 of 2013) (Constitutional and Human Rights) [2013] KEMC 65 (KLR)", Case Analysis (2013). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/65/eng@2013-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.