Jacob Kazungu Kahindi v I.E.B.C & 2 Others [2017] KEMC 82 (KLR)
The bottom line
#A Kilifi court struck out an election petition because it was never served on respondents, lacked required details, and no security for costs was deposited.
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 effected service of the Petition on the Respondents as required under Article 87(3) of the Constitution and Section 77 of the Elections Act
- 2.Whether failure to deposit security for costs under Section 78 of the Elections Act renders the Petition fatally defective or whether the Court has discretion to extend time
- 3.Whether the Petition complies with the mandatory form and content requirements of Rule 8 of the Elections (Parliamentary and County Elections) Petition Rules, 2017
- 4.Whether the Court can grant leave to withdraw the Petition under Rules 21 and 22 of the Petition Rules
Key legal issues
#Service of the election petition
There was no service of the Petition on the Respondents; the Court found no affidavit of service or newspaper advertisement, and non-service is fatal
Article 87(3) of the Constitution and Section 77(2) of the Elections Act permit service directly or by advertisement in a newspaper with national circulation. The Court perused the entire file and found no affidavit of service or advertisement. Relying on Rozaah Akinyi Buyu and the Patrick Ngeta Kimanzi decision, the court held that service is an integral element of the right to a fair hearing, and failure to serve goes to the root of the petition.
Deposit of security for costs
Failure to deposit security does not kill the petition outright; the correct position is that the petition is in a comatose state and can be resuscitated within the prescribed time frame
The court identified two schools of thought: Sitati J's view that non-deposit deprives the court of jurisdiction, and Muriithi J's view (adopted by Korir J in Samwel Kazungu Kambi) that Section 78(3) leaves discretion to extend time since the constitutional right to challenge an election under Article 38(3)(c) prevails over restrictive statutory provisions under Article 2(4). The court expressly aligned itself with the second school of thought.
Form and content of the Petition
The Petition was fatally incompetent for omitting mandatory particulars required by Rule 8, including declared results, candidates' names and votes, the date and manner of declaration, and a prayer for nullification
Applying the strict approach in Jyoti Basu (India) and John Michael Njenga Mututho (Court of Appeal), election petitions are special statutory proceedings whose requirements must be strictly observed. The Petition also sued the Members Elect of Kilifi County Assembly in a blanket fashion without naming them, their Wards, the candidates or the votes garnered, making it incurably defective and incapable of standing.
Legal principles established
#- Service of an election petition, directly or by advertisement in a newspaper of national circulation, is mandatory and failure to serve goes to the root of the petition
- Failure to deposit security for costs under Section 78(3) of the Elections Act places the petition in a comatose state that can be revived with leave of court, unlike the mandatory striking-out regime of Section 96
- An election petition must strictly comply with statutory form and content requirements, including pleading the results as declared and the date of declaration
Court orders
#- 1.The 1st and 2nd Respondents' Notice of Motion dated 1st November, 2017 seeking striking out of the Petition is granted
- 2.The Petition dated 6th September, 2017 is struck out
- 3.Costs of the application awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 87 of the Constitution of Kenya, 2010; Sections 77 and 78 of the Elections Act (No. 24 of 2011); Elections (Parliamentary and County Elections) Petition Rules, 2017
Relief refused
#Leave to withdraw the Petition
The withdrawal was not crystallized in accordance with Rules 21 and 22 of the Elections (Parliamentary and County Elections) Petition Rules, 2017
Costs
Costs of the application awarded to the Respondents - the Petition was struck out 'with costs to the Respondents'
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.
service of a Petition is a button that must be triggered for the election dispute to commence and without it, the Petition is as good as dead on arrival and resuscitation can only lie when it is a comatose state.
I therefore find that there was no service of the Petition on the Respondents as per the mandatory worded requirement.
Section 78(3) puts an election petition in comatose if no security for costs is deposited. My understanding is that an election petition can be revived, with the leave of the court, upon payment of the security deposit so long as the period for hearing the petition has not lapsed.
The upshot is the 1st and 2nd Respondents' application dated 1st November, 2017 and filed in Court on the same day, seeking the striking out of the Petitioner's petition dated the 6 th September, 2017 and filed in this court on the 1st November, 2017, is hereby granted. The end result is that the said Petition must be and is hereby struck out, with costs to the Respondents.
Issues in the judgment
#The coram designates the presiding officer as 'SPM' while the signature block reads 'SENIOR PRINCIPAL MAGISTRATE'; the rank used is inconsistent within the judgment
The judgment contains an apparent drafting error ('affront or ten days thereafter the filing of the Petition') and a typographical error in the case name 'RAILA ODINGAVUHURU KENYATTA'
Obiter remark that the security-for-costs rule 'has with passage of time weakened and is not good law' sits uneasily with the court's acceptance that the petition could be revived, but the court had already aligned itself with the second school of thought
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob Kazungu Kahindi v I.E.B.C & 2 Others [2017] KEMC 82 (KLR)", Case Analysis (2017). Election Petition No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/82/eng@2017-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.