[2017] KEHC 2710 (KLR)
The court held that since the main election petition had already been struck out in its entirety by a prior ruling, there was no longer any substantive matter pending before the court. As a result, the interlocutory application dated 2nd October, 2017 was rendered moot. The court therefore dismissed the application...
Source-derived case information.
- Citation
- [2017] KEHC 2710 (KLR)
- Parties
- Applicant: David Wamatsi Omusotsi; Respondent: The Returning Officer Mumias East Constituency; Respondent: Independent Electoral and Boundaries Commission; Respondent: Benjamin Washiali Jomo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Election Petition 9 of 2017
- Procedural Posture
- Election Petitions / Ruling on Interlocutory Application Following Petition Dismissal
- Outcome
- Application dismissed with costs to the respondents.
- Judges
- CM Njagi
- Legal Topics
- Striking Out Affidavits, Admission of Further Affidavits, Witness Intimidation, Disclosure of Election Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Wamatsi Omusotsi
Applicant
The Returning Officer Mumias East Constituency
Respondent
Independent Electoral and Boundaries Commission
Respondent
Benjamin Washiali Jomo
Respondent
Procedural Posture
Election Petitions / Ruling on Interlocutory Application Following Petition Dismissal
Legal Issues
- 1 Whether the court can entertain interlocutory applications after the main election petition has been struck out.
- 2 Whether the petitioner is entitled to the orders sought in the notice of motion dated 2nd October, 2017.
Ratio Decidendi
The court held that since the main election petition had already been struck out in its entirety by a prior ruling, there was no longer any substantive matter pending before the court. As a result, the interlocutory application dated 2nd October, 2017 was rendered moot. The court therefore dismissed the application with costs to the respondents, emphasizing that without a pending petition, the court lacked jurisdiction to grant the orders sought.
Court Disposition
Application dismissed with costs to the respondents.
Orders
- The notice of motion dated 2nd October, 2017 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
ELECTION PETITION NO.9 OF 2017
DAVID WAMATSI OMUSOTSI......................................................PETITIONER
VERSUS
THE RETURNING OFFICER MUMIAS
EAST CONSTITUENCY.......................................................1ST RESPONDENT
INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION..................................2ND RESPONDENT
BENJAMIN WASHIALI JOMO..........................................3RD RESPONDENT
RULING
1. The petitioner has filed a notice of motion dated the 2nd October, 2017 seeking for orders that:
1. The 1st and 2nd respondent’s response, replyingaffidavit sworn on 25th September, and accompanying affidavits sworn on the same date thereof be struck out.
2. The honourable court be pleased to admit the petitioner/applicant’s further affidavits already filed as duly filed with leave.
3. The 3rd respondent, his agents, servants, employees and/or relatives be restrained from interfering with, approaching and/or intimidating witnesses to prevent them from appearing to testify and/or recant their evidence.
4. The 1st and 2nd respondents be directed to supply and/or provide the petitioner/applicant with all forms 35As, list of all presiding and deputy officers and stations of work and poll station diaries for all polling stations.
5. The costs be in the cause.
The application was opposed by the three respondents.
2. In view of my ruling dated the 2nd November, 2017 striking out this petition in its entirety, it follows that there is no petition now pending before the court. The application dated the 2nd October, 2017 should consequently be dismissed. The notice of motion is thereby dismissed with costs to the respondents.
Delivered, dated and signed at Kakamega this 2nd day of November, 2017.
JESSE NJAGI
JUDGE
In the presence of:
S.M. Munoko - for petitioner
Were holding brief Masika - for 1st and 2nd respondents
Nyamu - for 3rd respondent
George - court assistant
Petitioner – present
3rd respondent – present
1st respondent – absent
30 days right of appeal