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MagistrateDismissedNot stated in the judgment extract

Joseph Kiponda v Independent Electoral & Boundaries Commission & Stephen Bahati Mulanda (Election Petition 1 of 2013) (Constitutional and Human Rights) [2013] KEMC 65 (KLR)

Magistrates' Court at Malindi
31 May 2013
924 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The petitioner, in an election petition challenging the election of the 2nd respondent as Ganda Ward County Assembly Representative, filed a Notice of Motion dated 26 March 2013 seeking an order restraining the 2nd respondent from assuming office and from undertaking any functions as Ganda Ward County Assembly Representative pending the hearing and determination of the petition. The respondents opposed, disposing of the application by written submissions. The court found that the 2nd respondent had already taken the oath of office by the time of filing, so the first limb of the prayer was overtaken by events; the remaining prayer sought in effect a prohibitory injunction against the 2nd respondent continuing in office. Applying the Giella v Cassman Brown principles, the court held that although the petitioner had shown a prima facie case with a probability of success, he had not demonstrated irreparable loss flowing from the 2nd respondent's continued stay in office. Emphasising that an election petition is not an ordinary civil suit, that elections are presumed properly conducted until proved otherwise at full trial, and that the will and interest of the electorate of Ganda ward must be considered, the court held the balance of convenience favoured maintaining the status quo so the ward would not be deprived of representation. The application was dismissed with costs in the cause. Judgment was delivered at Malindi on 31 May 2013 by Y.A. Shikanda, Ag. Senior Resident Magistrate.

Questions the Court framed

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

  1. 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. 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

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01

Whether an interlocutory injunction should issue restraining the 2nd respondent from acting as Ganda Ward County Assembly Representative pending the petition

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 26/3/13 is dismissed
  2. 2.Costs of the application shall be in the cause

The bench

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

YS
Y.A. ShikandaAg. Senior Resident Magistrate
majority

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

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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

p. 2

Costs

Costs of the application shall be in the cause.

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 an Election petition the presumption is that the elections were properly conducted unless the contrary is proven.
p. 2Presumption of validity of elections
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
p. 2Standard of proof in election petitions
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.
p. 2Final orders / disposition

Issues in the judgment

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minor

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

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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, "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.