[2017] KEMC 54 (KLR)
The court found that the petition complied with the requirements of Rule 8(1) and 12 of the Election Petition Rules because the date of the election and the declaration of results were clearly stated in the petition and supporting affidavit, and the relevant statutory form (Form 36B) was annexed. The court held that...
Source-derived case information.
- Citation
- [2017] KEMC 54 (KLR)
- Parties
- Applicant: Dickson Karani Yaa; Respondent: Independent Electoral and Boundaries Commission; Respondent: Abdiwahid Hussein – Returning Officer Kilifi North Constituency; Respondent: Emmanuel Changawa Kombe
- Court
- Magistrate's Court
- Court Station
- Election Petition in Magistrate Courts
- Jurisdiction
- Kenya
- Case Number
- Election Petition 2 of 2017
- Procedural Posture
- Election Petition / Ruling on Preliminary Objection/application to Strike Out Petition
- Outcome
- application dismissed with costs to the petitioner
- Legal Topics
- Election Petition Format, Pleading Requirements, Rule 8 1 Election Rules, Affidavit Compliance, Declaration of Results, Annexure of Statutory Forms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Karani Yaa
Applicant
Independent Electoral and Boundaries Commission
Respondent
Abdiwahid Hussein – Returning Officer Kilifi North Constituency
Respondent
Emmanuel Changawa Kombe
Respondent
Procedural Posture
Election Petition / Ruling on Preliminary Objection/application to Strike Out Petition
Legal Issues
- 1 Whether the petition should be struck out for failure to state the date of elections and declared results as required by Rule 8(1) of the Election Petition Rules.
- 2 Whether reference to annexed statutory forms (Form 36B) satisfies the requirements of Rule 8(1) and 12 of the Election Petition Rules.
Ratio Decidendi
The court found that the petition complied with the requirements of Rule 8(1) and 12 of the Election Petition Rules because the date of the election and the declaration of results were clearly stated in the petition and supporting affidavit, and the relevant statutory form (Form 36B) was annexed. The court held that it is not necessary for the petition to verbatim reproduce the contents of the statutory forms, as reference to and annexure of such documents containing the required information is sufficient for compliance. The application to strike out the petition was therefore dismissed as lacking merit.
Court Disposition
application dismissed with costs to the petitioner
Orders
- The application to strike out the petition is dismissed.
- Costs awarded to the petitioner.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT
AT KILIFI
ELECTION PETITION NO. 2 OF 2017
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE ELECTION ACT. NO. 11 OF 2011
AND
IN THE MATTER OF THE ELECTIONS
(PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017
BETWEEN
DICKSON KARANI YAA………………………………………………..PETITIONER
AND
INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION …..…………………………………………………1ST RESPONDENT
ABDIWAHID HUSSEIN – RETURNING OFFICER
KILIFI NORTH CONSTITUENCY……….…………………………2ND RESPONDENT
EMMANUEL CHANGAWA KOMBE………………………………3RD RESPONDENT
RULING
The 1st and 2nd Respondents have filed this Application dated 9/11/2017 seeking orders “inter alia”
1) This honourable court strike out the petitioner’s petition for want of format and content by failing to declare the results of the elections as well as state the date of elections.
2) This court strike out the entire petition including the affidavit sworn by the Petitioner for offending the provisions of Rule 8(1) of the Election Rules. The grounds are the petition did not give the date and the declared results it therefore lacks specificity.
The Application is opposed. Both the Petitioner and the Respondents filed submissions and cited several authorities. The Petitioner in response stated that the Application is frivolous he states that the results are all contained in the annexure to the Petition hence has not failed to comply with the law.
I have also perused the Petition. On the face of it the Petitioner has alluded to declaration of results vide form 36B which is the instrument for declaration of final election results. It is its contents that contain the information that is required to be pleaded by Rule 8(1) & 12. It is from its contents that a certificate is issued to the winner. Its contains, votes cast, total votes cast and contents “at al”.
The Petitioner has also clearly stated the election date and date of announcement of results. This is different from those petitioners who have not stated the same and who have not even pleaded the existence of form 36B in the face of the petition. The court of Appeal in the case of Jimmy Mkala Kazungu Vs. I.E.B.C Justice Thende stated thus:-
“In order to determine whether the Petitioner has complied with the mandatory requirement of Rule 8(1) of the Election Petition Rules, all this court is required to do is look at what is contained in the petition against the provisions of Rule 8(1)…The same requirements are replicated in Rule 12 (2) …affidavits…”
In this case I have looked at the petition and found that paragraph 4 and 11 of the supporting affidavit contains the date of the declaration of elections results so does the petition. Reference to form 36 B which is annexed to the petition also contains the rest of the requirements as defined in the case of Hassan Ali Joho & another Vs. Suleiman Said Shabal & 2 others (2014). EKLR. They contain the quantitative and numerical composition which are the actual declared results and who the winner and loser (s) are.
The Judges did not demand that these contents be verbatim laid out in the petition to my mind reference to the numerical and quantitative documents what is duly annexed is sufficient information for purposes of compliance with the law. If there was no reference to the statutory forms then they would have been in my opinion been obliged and the petition would not have survived past time point. I am therefore satisfied that the petition has complied with the law and hence I reject the Application as having no merit and dismiss the same with costs to the petitioner.
Signed
Hon. Dr. Julie Oseko – CM
Delivered in the presence of:
- Mr. Angina for 3rd Respondent and holding brief for Anne Kyusu for the 1st and 2nd Respondents
- Mr. Kinaro for the Petitioner.
Signed
Hon . Dr. Julie Oseko – CM
29/11/2017