Theophilus Kalama Fondo v Returning Officer Magarini Sub County & 2 others [2017] KEMC 59 (KLR)
The bottom line
#An election petition that fails to state full election results in the petition and affidavit will be struck out in Kenya, regardless of how strong its merits might be.
What this practically means
#Executive summary
#Key legal issues
#Whether the application and preliminary objection could proceed without a supporting affidavit
The application was properly on record; no supporting affidavit was required since it raised points of law apparent on the face of the pleadings
The court found the petitioner had quoted Kazungu Kambi out of context, as that case concerned impugned affidavits already filed, not absent ones. Following Skair Associates Architects, the court held applications on points of law require no affidavit. The application was properly on record and would be considered.
Whether the petitioner complied with Rules 8(1) and 12(2) of the Election Petition Rules
Non-compliance established; the petition stated only two candidates' votes, omitting votes cast, spoilt votes, other contestants and the total, both in the petition and the supporting affidavit
The petition only mentioned the winner's and petitioner's votes, implying a two-horse race when eight other contestants participated. The court adopted the Supreme Court's definition of election results in the Joho case (restating Mututho) that results include votes cast, spoilt and garnered by each candidate. The petitioner's plea for substantial compliance was an admission of non-compliance.
The consequence of non-compliance with Rules 8 and 12
The court aligned itself with the strict school of thought: the petition is fatally defective, incurable by amendment, and Article 159(2)(d) does not salvage it
As a subordinate court the magistrate was bound to follow precedent from superior courts. Weighing the strict, liberal and third views, the court adopted the strict school, noting election petitions have strict constitutional timelines under Article 87(2), leaving limited room for amendments or additional evidence. The petitioner gave no justification for omitting results available immediately after the gazette notice.
Legal principles established
#- An election petition must state the detailed results of the election and the date and manner of declaration in both the petition and the supporting affidavit; failure renders it fatally defective and it must be struck out
- An application raising pure points of law need not be supported by a supporting affidavit
Court orders
#- 1.The Petition by Theophilus Kalama Fondo dated 6th September 2017 and filed in Court on 6th September 2017 against Peter Ziro Ngowa be and is hereby struck out
- 2.The costs of the petition to be borne by the petitioner and capped at 1,500,000/-
- Jurisdiction invoked
- Article 87 of the Constitution read with the Elections Act and the Elections (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Theophilus Kalama Fondo v Returning Officer Magarini Sub County & 2 others [2017] KEMC 59 (KLR)", Case Analysis (2017). Election Petition (Malindi), 2017 (filed 6th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/59/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.