[2010] KEHC 2929 (KLR)

[2010] KEHC 2929 (KLR)

The court held that the 2nd and 3rd Respondents, being the Returning Officer and the Electoral Commission, are bound by law to maintain neutrality and are not obliged to join the 1st Respondent in defending the validity of the election on terms dictated by him. The court found no legal basis to compel a co-respondent to file pleadings or affidavits at the behest of another respondent. The unique procedure of election petitions, where respondents respond only after the petitioner closes their case, does not prejudice the 1st Respondent, who will have the opportunity to address issues such as Form 17A at the hearing. The application for directions was therefore refused.

Citation
[2010] KEHC 2929 (KLR)
Parties
Applicant: Ibrahim Ahmed; Respondent: Simon Mbugua; Respondent: Priscyllar A. Wawiru; Respondent: The Electoral Commission of Kenya
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
21 April 2010
Case Number
Election Petition 35 of 2008
Procedural Posture
Election Petition / Ruling on Directions Prior to Hearing of Notice of Motion to Strike Out Petition
Outcome
Application for directions refused; costs in the cause; application of 9th April 2010 to proceed for hearing.
Judges
KH Rawal
Legal Topics
Election Petition Procedure, Pleadings and Affidavits, Neutrality of Electoral Commission
Source Language
English
Election Petitions Civil Procedure Election Petition Procedure Pleadings and Affidavits Neutrality of Electoral Commission

Case Brief

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Parties

Ibrahim Ahmed

Applicant

Simon Mbugua

Respondent

Priscyllar A. Wawiru

Respondent

The Electoral Commission of Kenya

Respondent

Procedural Posture

Election Petition / Ruling on Directions Prior to Hearing of Notice of Motion to Strike Out Petition

Legal Issues

  1. 1 Whether the 2nd Respondent (Returning Officer) is obliged to file a replying affidavit to controvert allegations made by the Petitioner regarding the announcement and documentation of election results.
  2. 2 Whether the court should direct the 2nd Respondent to produce Form 17A or allow the 1st Respondent to do so.
  3. 3 Whether all respondents have a joint responsibility to defend the validity of the election in the manner dictated by the 1st Respondent.

Ratio Decidendi

The court held that the 2nd and 3rd Respondents, being the Returning Officer and the Electoral Commission, are bound by law to maintain neutrality and are not obliged to join the 1st Respondent in defending the validity of the election on terms dictated by him. The court found no legal basis to compel a co-respondent to file pleadings or affidavits at the behest of another respondent. The unique procedure of election petitions, where respondents respond only after the petitioner closes their case, does not prejudice the 1st Respondent, who will have the opportunity to address issues such as Form 17A at the hearing. The application for directions was therefore refused.

Court Disposition

Application for directions refused; costs in the cause; application of 9th April 2010 to proceed for hearing.

Orders

  • No direction is given as proposed by the 1st Respondent.
  • Costs in the cause.