[2018] KEHC 8401 (KLR)
The High Court, having concluded the election petition, is functus officio and lacks jurisdiction to grant a stay of execution. The proper forum for seeking a stay is the Court of Appeal, as provided for under the Elections Act, 2011. The court therefore declined to grant a stay and directed the parties to seek such...
Source-derived case information.
- Citation
- [2018] KEHC 8401 (KLR)
- Parties
- Applicant: Ahmed Abdullahi Mohamad; Applicant: Ahmed Muhumud Abdi; Respondent: Hon. Mohamed Abdi Mohamed; Respondent: Gichohi Gatuma Patrick; Respondent: Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 14 of 2017
- Procedural Posture
- Election Petitions / Post Judgment Application for Stay and Proceedings
- Outcome
- Application for stay declined; directions given for collection of proceedings and return of ballot boxes.
- Judges
- A Mabeya
- Legal Topics
- Stay of Execution, Collection of Judgment, Return of Ballot Boxes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Abdullahi Mohamad
Applicant
Ahmed Muhumud Abdi
Applicant
Hon. Mohamed Abdi Mohamed
Respondent
Gichohi Gatuma Patrick
Respondent
Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Election Petitions / Post Judgment Application for Stay and Proceedings
Legal Issues
- 1 Whether the High Court can grant a stay of execution after concluding an election petition.
- 2 Whether parties are entitled to certified proceedings and judgment after conclusion of the petition.
- 3 Whether the IEBC can return ballot boxes to Wajir after scrutiny and recount.
Ratio Decidendi
The High Court, having concluded the election petition, is functus officio and lacks jurisdiction to grant a stay of execution. The proper forum for seeking a stay is the Court of Appeal, as provided for under the Elections Act, 2011. The court therefore declined to grant a stay and directed the parties to seek such relief in the appellate court. The court also allowed the collection of certified proceedings and judgment upon payment of requisite charges, and permitted the IEBC to return the ballot boxes that had been subjected to scrutiny and recount to Wajir, as the petition had been concluded.
Court Disposition
Application for stay declined; directions given for collection of proceedings and return of ballot boxes.
Orders
- Certified proceedings and judgment to be collected upon payment of requisite charges.
- IEBC at liberty to return ballot boxes subjected to scrutiny and recount to Wajir.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELECTION PETITION NO. 14 OF 2017
IN THE MATTER OF THE GUBERNATORIAL
ELECTIONS FOR WAJIR COUNTY
BETWEEN
AHMED ABDULLAHI MOHAMAD............1ST PETITIONER
AHMED MUHUMUD ABDI.........................2ND PETITIONER
AND
HON. MOHAMED ABDI MOHAMED......1ST RESPONDENT
GICHOHI GATUMA PATRICK................2ND RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION.................3RDRESPONDENT
RULING
Counsel for the first respondent has applied for proceedings and stay.
As regards proceedings and Judgment, the typed proceedings are ready and the certified copy of the Judgment can be collected by 2. 00 p.m. today upon payment of the requisite charges.
The IEBC be at liberty to return the ballot boxes that were subjected to scrutiny and recount to Wajir as the Petition has been concluded.
As regards stay, I do not think this court is the proper forum to grant such an order. Having concluded the Petition, it cannot make any further orders. The Elections Act, 2011 is clear how an automatic stay can be obtained in the Court of Appeal.
Since the unsuccessful parties are at liberty to lodge the said appeal at any time as all they require is ready; I decline to grant any stay and direct that they seek it in the Court of Appeal.
Orders accordingly.
DATED and DELIVERED this 12th day of January, 2018.
A MABEYA
JUDGE
12/1/2018