[2013] KEHC 4139 (KLR)
The court held that the preliminary objection raised by the respondents merged both points of law and fact and was therefore not a pure point of law capable of disposing of the matter at this stage. Consequently, the chamber summons should proceed to interpartes hearing, allowing parties to revisit the issues...
Source-derived case information.
- Citation
- [2013] KEHC 4139 (KLR)
- Parties
- Applicant: Dobson Chiro Mwahanga; Respondent: Independence Electoral & Boundaries Commission; Respondent: The Returning Officer, Kilifi County
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Petition 2 of 2013
- Procedural Posture
- Election Petitions / Ruling on Preliminary Objection
- Outcome
- Preliminary objection not upheld; matter to proceed to interpartes hearing.
- Judges
- CW Meoli
- Legal Topics
- Preliminary Objection, Production of Election Documents, Costs Orders, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dobson Chiro Mwahanga
Applicant
Independence Electoral & Boundaries Commission
Respondent
The Returning Officer, Kilifi County
Respondent
Procedural Posture
Election Petitions / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised is a pure point of law capable of disposing of the matter.
- 2 Whether the applicant is entitled to access forms 35 and 36 upon payment of costs.
Ratio Decidendi
The court held that the preliminary objection raised by the respondents merged both points of law and fact and was therefore not a pure point of law capable of disposing of the matter at this stage. Consequently, the chamber summons should proceed to interpartes hearing, allowing parties to revisit the issues raised. The court further directed that the applicant may obtain forms 35 and 36 from the respondents upon payment of the requisite costs.
Court Disposition
Preliminary objection not upheld; matter to proceed to interpartes hearing.
Orders
- Chamber summons to proceed to interpartes hearing.
- Applicant at liberty to obtain forms 35 and 36 from respondents upon payment of costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
ELECTION PETITION NO. 2 OF 2013
DOBSON CHIRO MWAHUNGA …........................................PETITIONER
VERSUS
INDEPENDECE ELECTORAL &
BOUNDARIES COMMISSION....................................1ST RESPONDENT
THE RETURNING OFFICER, KILIFI COUNTY …............2ND RESPONDENT
RULING
I have considered the seven-pronged Notice of Preliminary Objection raised by the 1st and 2nd Respondents, and the submissions thereto by the parties. In my considered view the preliminary objection merges both points of law and fact and is therefore not a pure point of law capable of disposing of the matter completely. In the circumstances, I would direct that the chamber summons filed on 20th March, 2013 proceeds to interpartes hearing whereupon the parties will be at liberty to revisit issues raised in the preliminary objection.
However, as counsel for the 1st & 2nd Respondent has intimated that his clients are willing to furnish to the applicant the documents mentioned in prayer 2b, namely forms 35 and 36 provided the applicants meet the cost, the applicant is at liberty to avail himself of the same subject to making the requisite costs.
Costs will abide the outcome of the chamber summons now set down for hearing on 16th April, 2013.
Delivered and signed at Malindi this 4th day of April, 2011 in the presence of Mr. Angima holding brief for Mr. Khagram for Petitioner, Mr. Katsoleh holding brief for Mr. Gicharu for petitioner.
C. W. MEOLI
JUDGE