[2013] KEHC 2708 (KLR)
The court found that the petitioner had failed to deposit the required security for costs and had not effected service upon the respondents. These omissions indicated a lack of intention to prosecute the petition. In accordance with the Elections Act and the Elections Petition Rules, the court determined that the...
Source-derived case information.
- Citation
- [2013] KEHC 2708 (KLR)
- Parties
- Petitioner: James Kuya Ebei; Respondent: Independent Electoral and Boundaries Commission; Respondent: Kirori Kimani; Respondent: Daniel Nanok Epuyo
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Election Petition 8 of 2013
- Procedural Posture
- Election Petition / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- petition dismissed for want of prosecution
- Judges
- A Mshila
- Legal Topics
- Security for Costs, Service of Process, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kuya Ebei
Petitioner
Independent Electoral and Boundaries Commission
Respondent
Kirori Kimani
Respondent
Daniel Nanok Epuyo
Respondent
Procedural Posture
Election Petition / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the petition should be dismissed for failure to deposit security for costs.
- 2 Whether the petition should be dismissed for failure to serve the respondents.
- 3 Whether the respondents are entitled to costs of the application.
Ratio Decidendi
The court found that the petitioner had failed to deposit the required security for costs and had not effected service upon the respondents. These omissions indicated a lack of intention to prosecute the petition. In accordance with the Elections Act and the Elections Petition Rules, the court determined that the petition could not proceed and should be dismissed for want of prosecution. The court further held that, in line with the overriding objectives of proportionality and affordable resolution, the respondents would only be entitled to the costs of the application, not the entire petition. A certificate was ordered to issue to the IEBC and the Speaker of the National Assembly as...
Court Disposition
petition dismissed for want of prosecution
Orders
- The petition is dismissed for want of prosecution.
- Respondents are entitled only to costs of the application.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
High Court at Kitale
Election Petition 8 of 2013 [if gte mso 9]><xml>
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THE ELECTIONS ACT, 2011
JAMES KUYA EBEI................................................................................................PETITIONER
VERSUS
INDEPENDENT ELECTORAL ANDBOUNDARIES COMMISSION.......1ST RESPONDENT
KIRORI KIMANI..........................................................................................2ND RESPONDENT
DANIEL NANOK EPUYO...........................................................................3RD RESPONDENT
RULING
1. The petitioner filed this petition on the 10th April, 2013. To date no payment has been made for security for costs nor has service been effected upon the respondents.
2. The 3rd respondent chose to move the court by way of Notice of Motion for dismissal of the petition.
3. The date for hearing of the application was taken in court and all counsel were present
4. On the 28th May, 2013, the application proceeded for hearing in the absence of the petitioner and his counsel, as counsel had due notice.
5. Having failed to deposit the requisite security for costs and having failed to effect service upon the respondents, this court finds that the petitioner is not desirous in prosecuting the petition.
6. The petition is hereby dismissed for want of prosecution.
7. On the issue of costs, in line with the overriding objectives enunciated in Rule 4 of the Elections Petition Rules 2013 with particular emphasis on the words: “..........proportionality and affordable resolution...............” , the respondents shall only be entitled to costs of this application.
8. A Certificate shall issue to I.E.B.C. and the Speaker of the National Assembly under the provisions of Section 86(1) of the Election Act.
It is so ordered.
Dated, Signed and Delivered at Kitale this 11th day of June, 2013.
A. MSHILA
JUDGE
Delivered in the presence of
Kassachoon, Court clerk
N/A for Petitioner
Samba holding brief for Gumbo for 1st and 2nd respondent
Samba for 3rd respondent
Stephen Karuga, Legal Researcher
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