[2017] KEMC 113 (KLR)
The court found that the petitioners failed to serve the petition within the 7-day period stipulated by the Election Petition Rules and did not deposit the required security for costs within 10 days of filing. The court emphasized that compliance with these procedural requirements is mandatory, as established in...
Source-derived case information.
- Citation
- [2017] KEMC 113 (KLR)
- Parties
- Applicant: Irene Jerop Cheboi; Applicant: Catherine Jebakura Lekuta; Applicant: Elizabeth Aemun Nanan; Respondent: Independent Electoral & Boundaries Commission; Respondent: Jubilee Party; Respondent: The Clerk County Assembly of Nakuru
- Court
- Magistrate's Court
- Court Station
- Election Petition in Magistrate Courts
- Jurisdiction
- Kenya
- Case Number
- Election Petition 003 of 2017
- Procedural Posture
- Election Petition / Ruling on Preliminary Objection and Petition
- Outcome
- petition struck out with costs to the 1st respondent
- Legal Topics
- Nomination Process, Party Lists, Gender and Minority Rights, Compliance With Election Petition Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irene Jerop Cheboi
Applicant
Catherine Jebakura Lekuta
Applicant
Elizabeth Aemun Nanan
Applicant
Independent Electoral & Boundaries Commission
Respondent
Jubilee Party
Respondent
The Clerk County Assembly of Nakuru
Respondent
Procedural Posture
Election Petition / Ruling on Preliminary Objection and Petition
Legal Issues
- 1 Whether the petition was filed and served within the legally stipulated time under the Election Petition Rules.
- 2 Whether the petitioners deposited the required security for costs within the prescribed period.
- 3 Whether the nomination process for the County Assembly was irregular, discriminatory, or in contravention of constitutional rights.
Ratio Decidendi
The court found that the petitioners failed to serve the petition within the 7-day period stipulated by the Election Petition Rules and did not deposit the required security for costs within 10 days of filing. The court emphasized that compliance with these procedural requirements is mandatory, as established in relevant case law. The petitioners did not provide any explanation for their non-compliance. Consequently, the court held that the petition was fatally defective and must be struck out, regardless of the substantive allegations regarding irregularities in the nomination process.
Court Disposition
petition struck out with costs to the 1st respondent
Orders
- The petition is struck out.
- Costs awarded to the 1st Respondent.
Full Case Text
Judgment text and source record
58 paragraphs
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT AT NAKURU
ELECTION PETITION NO 003 OF 2017
IRENE JEROP CHEBOI ………...............…….………..….1ST PETITIONER
CATHERINE JEBAKURA LEKUTA..…...……..…….……..2ND PETITIONER
ELIZABETH AEMUN NANAN…..……...…..………………3RD PETITIONER
VERSUS
INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION...................….................…1ST RESPONDENT
JUBILEE PARTY……………………....……….….…….....2ND RESPONDENT
THE CLERK COUNTY ASSEMBLY OF NAKURU…..........3RD RESPONDENT
13/10/2017
Before Hon B Mararo PM
Court Assistant Philaris
Mongeri for Petitioner
Mr Akango for 1st Respondent
Mr Akango: We are talking. We have agreed to mention it on 17/10/2017.
Court: Mention on 17/10/2017 at 2. 30 pm.
Hon B Mararo PM
13/10/2017
17/10/2017
Before Hon B Mararo PM
Court Assistant Philaris
Mr Akango: Mr Mongeri had intimidated intention to withdraw the Petition.
He should file a formal application.
Mr Akango: We can rely on the Production Order.
Court: Ruling on production order on 24/10/2017.
Hon B Mararo PM
17/10/2017
RULING
The petitioner herein Irene Jerop Cheboi, Catherine Jebakura Lekuta, and Elizabeth Aemun Nanan have petitioned this court against the Independent Electoral and Boundaries Commission, the Jubilee Party and the Clerk County Assembly Nakuru for;
A. THAT this honourable court be pleased to grant a permanent injunction stopping the swearing in of the nominated members of County Assembly as listed in the Gazette Notice published on 28/8/2017 and further order that the process be done again.
B. THAT the honourable court be pleased to declare the process and the decision of the 1st and 2nd Respondents of publishing 2 more lists of shortlisted Nominated MCA’s Nakuru was irregular discriminatory and in contravention of the Petitioner rights as party members and special interest groups (women group).
C. THAT the Hounourable Court be pleased to declare that the gazette notice published on 28/8/2017 bearing the names of the nominated members of County Assembly Nakuru County is in contravention of the rights of the application under the constitution.
D. THAT this Honourable Coourt be pleased to grant the petitioners herein the costs of this Petition.
The Petition is grounded on inter alia.
A. THAT the Petitioners were in the list, harmonized list of shortlisted candidates.
B. THAT the initial list was the proper list.
C. THAT a second list was published by the 1st Respondent extending the Petitioners save for the 2nd Petitioner.
D. THAT the 1st Respondent prepared a 3rd list similar to the 2nd list excluding the Petitioners save for the 2nd Petitioner.
E. THAT the minority communities have been sidelined out and left out of the nominations.
F. THAT the wards from which the Petitioners emanate here never had the opportunity of a nominated MCA unlike others.
G. THAT some wares had nominated MCAs in last elections and again have nominated MCAs in 2017.
H. THAT the 2nd Respondent would have nominated to nominate 2 MCAs per constituency instead of renominations from a Ward that had a nominated MCA in 2013.
I. THAT the criteria used by the 1st Respondent and 2nd Respondent to generate the 2nd and 3rd lists were irregular and discriminatory.
J. THAT gender balance and minority communities were not part of the considerations in nominations of the positions of nominated MCAs for the Jubilee party.
K. THAT the Petitioners do not understand how their names were eliminated from the 2nd and 3rd party list considering that they were in the 1st list.
The 1st Respondent filed and served Notice of Preliminary Objection dated 16/10/2017 and among the issues raised was that the Petitioner failed to file and serve the Petition within the legally stipulated time.
As per the Election Petition rules the Petitioner is to serve the Respondent within 7 days after filing of the petition (S.10) in the present case. The Petition was filed on 5/9/2017 and the same had not been served by 13/9/2017 as required by the rules.
Further the petitioner was yet to deposit the security for costs in the sum of kshs 100,000 within 10 days of filing the petition as per Rule 13 of the Election Petitions rules 2017.
In view of the above and guided by;
Mombasa HC Election Petition No 9 of 2017
AND
Kisii HC Election Petition No 10 of 2013
Whereby it was held that compliance with the rules was mandatory, I find in the present case that the petitioner did not even make an attempt to explain the anomaly. I consequently proceed to strike the Petition filed here with costs to the 1st Respondent this 24th day of Oct 2017.
Delivered in the presence of Mr Akango for the Petitioner and Mr Atengo for the Respondent this 24th day of Oct 2017.
Hon B Mararo PM
24/10/2017