[2013] KEHC 5926 (KLR)

[2013] KEHC 5926 (KLR)

The court held that the supplemental petition was incurably incompetent for two reasons: first, it was filed without a supporting affidavit as required by Rule 10 (3) of the Election Petition Rules, which is couched in mandatory terms; and second, it was filed outside the statutory 28-day time limit provided under Section 76 (2) and (3) of the Elections Act, which also applies to supplemental petitions under Section 76 (5). The court found that leave of court would have been necessary to file the supplemental petition out of time, which the petitioner did not seek. Consequently, the Notice of Motion seeking leave to file further affidavits was also incompetent, as it sought to support an...

Citation
[2013] KEHC 5926 (KLR)
Parties
Applicant: Benjamin Ogunyo Andama; Respondent: Benjamin Andola Andayi; Respondent: Sally Chesang (Returning Officer); Respondent: Independent Electoral & Boundaries Commission
Court
High Court
Court Station
High Court at Kakamega
Jurisdiction
Kenya
Judgment Date
19 June 2013
Case Number
Election Petition 8 of 2013
Procedural Posture
Election Petition / Ruling on Preliminary Objections to Supplemental Petition and Notice of Motion
Outcome
supplemental petition and notice of motion struck out
Judges
GMA Dulu
Legal Topics
Supplemental Petition Requirements, Affidavit Mandatory Filing, Time Limits Election Petitions, Preliminary Objection, Leave of Court, Striking Out Proceedings
Source Language
English
Election Petitions Civil Procedure Supplemental Petition Requirements Affidavit Mandatory Filing Time Limits Election Petitions Preliminary Objection Leave of Court Striking Out Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Benjamin Ogunyo Andama

Applicant

Benjamin Andola Andayi

Respondent

Sally Chesang (Returning Officer)

Respondent

Independent Electoral & Boundaries Commission

Respondent

Procedural Posture

Election Petition / Ruling on Preliminary Objections to Supplemental Petition and Notice of Motion

Legal Issues

  1. 1 Whether a supplemental petition can be filed without a supporting affidavit as required by the Election Petition Rules.
  2. 2 Whether the supplemental petition was filed within the statutory time limits under the Elections Act.
  3. 3 Whether leave of court is required to file a supplemental petition outside the prescribed time limits.

Ratio Decidendi

The court held that the supplemental petition was incurably incompetent for two reasons: first, it was filed without a supporting affidavit as required by Rule 10 (3) of the Election Petition Rules, which is couched in mandatory terms; and second, it was filed outside the statutory 28-day time limit provided under Section 76 (2) and (3) of the Elections Act, which also applies to supplemental petitions under Section 76 (5). The court found that leave of court would have been necessary to file the supplemental petition out of time, which the petitioner did not seek. Consequently, the Notice of Motion seeking leave to file further affidavits was also incompetent, as it sought to support an...

Court Disposition

supplemental petition and notice of motion struck out

Orders

  • The Supplemental Petition filed on 17th June, 2013 is struck out.
  • The Notice of Motion filed on 17th June, 2013 is struck out.