[2017] KEHC 1920 (KLR)

[2017] KEHC 1920 (KLR)

The court found that the preliminary objection did not meet the threshold of a pure point of law as required by the Mukisa Biscuits case, since the issue of whether 'Chris Munga N. Bichage' and 'Chris Munga' are the same person is a question of fact requiring evidence. The discrepancy in names between the affidavit and the annextures was deemed a procedural lapse, not a substantive defect, as the initials on the annextures matched the petitioner's full name and there was no real doubt as to identity. The court emphasized that procedural technicalities should not override substantive justice, in line with Article 159(2)(d) of the Constitution. The objection was therefore dismissed, but the...

Citation
[2017] KEHC 1920 (KLR)
Parties
Applicant: Chris Munga N. Bichage; Applicant: Zaheer Jihanda; Applicant: James F. O. Kenani; Respondent: Independent Electoral & Boundaries Commission; Respondent: Julius Meuta Okeyo; Respondent: Richard Nyagaka Tongi
Court
High Court
Court Station
High Court at Kisii
Jurisdiction
Kenya
Judgment Date
30 November 2017
Case Number
Election Petition 12 & 10 of 2017
Procedural Posture
Election Petition / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Judges
AG Ndung'u
Legal Topics
Affidavit Irregularities, Fair Hearing, Preliminary Objection, Procedural Technicalities
Source Language
English
Election Petitions Civil Procedure Affidavit Irregularities Fair Hearing Preliminary Objection Procedural Technicalities

Case Brief

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Parties

Chris Munga N. Bichage

Applicant

Zaheer Jihanda

Applicant

James F. O. Kenani

Applicant

Independent Electoral & Boundaries Commission

Respondent

Julius Meuta Okeyo

Respondent

Richard Nyagaka Tongi

Respondent

Procedural Posture

Election Petition / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the preliminary objection offends the principles of a fair hearing.
  2. 2 Whether the preliminary objection meets the threshold in Mukisa Biscuits Case.
  3. 3 Whether the appearance of two different names in the affidavit and annextures is fatal to the affidavit and/or annextures.

Ratio Decidendi

The court found that the preliminary objection did not meet the threshold of a pure point of law as required by the Mukisa Biscuits case, since the issue of whether 'Chris Munga N. Bichage' and 'Chris Munga' are the same person is a question of fact requiring evidence. The discrepancy in names between the affidavit and the annextures was deemed a procedural lapse, not a substantive defect, as the initials on the annextures matched the petitioner's full name and there was no real doubt as to identity. The court emphasized that procedural technicalities should not override substantive justice, in line with Article 159(2)(d) of the Constitution. The objection was therefore dismissed, but the...

Court Disposition

preliminary objection dismissed

Orders

  • The preliminary objection is dismissed.
  • Costs awarded to the 3rd Respondent.