[2017] KEHC 2709 (KLR)
The court found that the petitioner failed to attend court and prosecute her petition despite being given an opportunity to do so. Given the time-sensitive nature of election petitions and the petitioner's lack of seriousness, the court exercised its inherent jurisdiction to dismiss the petition. The court further...
Source-derived case information.
- Citation
- [2017] KEHC 2709 (KLR)
- Parties
- Petitioner: Emily Nyabuto; Respondent: The Independent Electoral and Boundaries Commission; Respondent: Isaac Ruto, Constituency Returning Officer; Respondent: Ernest Kivayu Ogesi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Election Petition 7 of 2017
- Procedural Posture
- Election Petition / Ruling on Non Attendance and Dismissal
- Outcome
- petition dismissed for want of prosecution; costs awarded to respondents
- Judges
- DAS Majanja
- Legal Topics
- Withdrawal of Petition, Dismissal for Non Attendance, Costs Award, Inherent Jurisdiction, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Nyabuto
Petitioner
The Independent Electoral and Boundaries Commission
Respondent
Isaac Ruto, Constituency Returning Officer
Respondent
Ernest Kivayu Ogesi
Respondent
Procedural Posture
Election Petition / Ruling on Non Attendance and Dismissal
Legal Issues
- 1 Whether the petition should be dismissed due to the petitioner's non-attendance and failure to prosecute the case.
- 2 Whether costs should be awarded to the respondents and from what source.
Ratio Decidendi
The court found that the petitioner failed to attend court and prosecute her petition despite being given an opportunity to do so. Given the time-sensitive nature of election petitions and the petitioner's lack of seriousness, the court exercised its inherent jurisdiction to dismiss the petition. The court further held that since the matter did not proceed to hearing, it was appropriate to award costs to the respondents, to be paid from the security deposit held in court.
Court Disposition
petition dismissed for want of prosecution; costs awarded to respondents
Orders
- The petition is dismissed for want of prosecution.
- The 1st and 2nd respondents are awarded KES 150,000 in costs, all inclusive.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE HIGH COURT AT KISUMU
KAKAMEGA ELECTION PETITION NO. 7 OF 2017
IN THE MATTER OF THE NATIONAL ASSEMBLY ELECTION FOR
VIHIGA CONSTITUENCY
BETWEEN
EMILY NYABUTO ………………..……..……...…….………….………..…………. PETITIONER
AND
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSON ………………………..……………………… 1ST RESPONDENT
ISAAC RUTO
CONSTITUENCY RETURNING OFFICER ..…….….…………………….… 2ND RESPONDENT
ERNEST KIVAYU OGESI …..……………………....…………………………3RD RESPONDENT
RULING
1. On 6th September 2017, the petitioner Emily Nyabuto filed a petition contesting the return of Ernest Kivayu Ogesi as the member of National Assembly for Vihiga Constituency following the general elections on 8th August 2017.
2. After the pre-trial conference, I fixed this matter for hearing on 1st, 2nd and 3rd November 2017. Prior to the hearing date on 20th October 2017, the petitioner filed an application seeking leave to withdraw the petition.
3. When the matter came up for hearing on 1st November 2017, the petitioner complained that she was not aware of the pending application and that she had not instructed her advocate to file such an application. I directed the petitioner to instruct a new advocate to appear in court today, 2nd November 2017, ready to proceed for hearing as the matter had been fixed for hearing for 3 consecutive days. Today, 2nd November 2017, neither the petitioner nor her advocates appeared in court when the matter was called out at 9. 00am and at 10. 00am.
4. Counsel for the respondents urged the court to dismiss the petition on the ground that the petitioner does not appear serious in prosecuting the matter. They stated that they were not even served with the application to withdraw the petition.
5. I have considered whether I should now dismiss this petition and I am convinced that I have inherent jurisdiction to do so if the circumstances justify. An election petition is time limited and hence parties must be prepared to proceed when the matter is fixed for hearing. In this case, since the petitioner denied that she wished to withdraw the matter, I directed that she should avail her advocate and be ready to proceed today. As neither her nor her advocate is present, the only cause available is for me to dismiss the petition.
6. I also award costs of the petition to the respondents. Given that the matter did not take off, I award the 1st and 2nd respondents Kshs 150,000/= all inclusive costs and the 3rd respondent Kshs 150,000/= all inclusive costs. These sums shall be paid out of the security deposit held in court.
7. Orders accordingly.
DATED andDELIVERED at KISUMUthis 2ndday of November 2017.
D.S. MAJANJA
JUDGE