[2017] KEMC 89 (KLR)
The court held that the application for stay of proceedings was informal and not properly before the court. The appropriate time for such an application was immediately after the delivery of the ruling, and it should have been made formally. Given the strict statutory timelines governing election petitions and the...
Source-derived case information.
- Citation
- [2017] KEMC 89 (KLR)
- Parties
- Applicant: Joseph Kiragu Muthura; Respondent: Pius Njogu Kathuri; Respondent: Julius Maingi Muthusi; Respondent: Independent Elections & Boundaries Commission
- Court
- Magistrate's Court
- Court Station
- Election Petition in Magistrate Courts
- Jurisdiction
- Kenya
- Case Number
- Election Petition 1 of 2017
- Procedural Posture
- Election Petition / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings dismissed.
- Judges
- ES Siundu
- Legal Topics
- Stay of Proceedings, Scrutiny and Recount, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Kiragu Muthura
Applicant
Pius Njogu Kathuri
Respondent
Julius Maingi Muthusi
Respondent
Independent Elections & Boundaries Commission
Respondent
Procedural Posture
Election Petition / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether an informal application for stay of proceedings pending appeal is competent in an election petition.
- 2 Whether the application for stay should have been made formally and at the time of delivery of the ruling.
- 3 Whether the strict timelines in election petitions preclude granting a stay of proceedings on an informal application.
Ratio Decidendi
The court held that the application for stay of proceedings was informal and not properly before the court. The appropriate time for such an application was immediately after the delivery of the ruling, and it should have been made formally. Given the strict statutory timelines governing election petitions and the need for expeditious resolution, the court found no basis to grant a stay of proceedings on an informal application. The court therefore declined to grant the stay and directed that dates be taken for the scrutiny and recount of votes as previously scheduled.
Court Disposition
Application for stay of proceedings dismissed.
Orders
- Application for stay of proceedings is declined.
- Dates to be taken for the exercise of scrutiny and recount of votes.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KERUGOYA
ELECTION PETITION NUMBER 1 OF 2017
IN THE MATTER OF THE ELECTION OF THE MEMBER OF THE COUNTY ASSEMBLY FOR THIBA WARD
AND
IN THE MATTER OF THE ELECTIONS ACT, 2011, NO. 24 OF 2011
AND
IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017
BETWEEN
JOSEPH KIRAGU MUTHURA.............................................PETITIONER
VERSUS
PIUS NJOGU KATHURI.................................................1ST RESPONDENT
JULIUS MAINGI MUTHUSI..........................................2ND RESPONDENT
INDEPENDENT ELECTIONS &
BOUNDARIES COMMISSION………..………………...3RD RESPONDENT
RULING
1. The 1st Respondent has made an application for stay of proceedings pending directions in Civil Appeal No. 44 of 2017. The appeal arises from a ruling on an interlocutory application delivered by this court on 27th October, 2017. This matter was coming up for mention for directions to be made on scrutiny and recount of votes cast in all the polling stations within Thiba Ward when this application was made by learned counsel for the 1st Respondent Mr. Kahiga.
2. This application was opposed by learned counsel for the petitioner Mr. Maina Kagio who submitted that it was made under unknown provisions of the law and that it should have been made on 27th October, 2017 under Order 42 Rule 6 of the Civil Procedure Rules when the ruling was delivered. Order 42 Rule 6(5) of the Civil Procedure Rules provides as follows:
(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
3. The 2nd and 3rd Respondents did not oppose the application. Learned counsel for the 2nd and 3rd Respondents Mr. Kathungu urged that the matter be mentioned in two weeks time within which time the High Court will have given directions on the interlocutory appeal and that in any event oral evidence had been dispensed with by consent of the parties and the constraint on time was not demanding on the court.
4. I have considered submissions made before me by learned counsels. The application by the 1st Respondent is an informal one. I agree with learned counsel Mr. Maina Kagio that the appropriate time for an oral application was when the ruling was delivered. The 1st Respondent needed to make a formal application.
5. This is an election petition with strict time constraints and the clock has been ticking, the petition having been filed on 6th September, 2017. Rule 4 of the Elections (Parliamentary and County Elections) Petition Rules gives the objective of the Rules which is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions. Under section 75 of the Elections Act a petition should be heard and determined within six months of the date of lodging the petition and any delay must be discouraged.
6. As stated earlier, parties were coming for directions on scrutiny and recount of votes cast in Thiba Ward. Since it is an informal application for stay of proceedings, I am unable to grant it for the reasons explained and direct that dates be taken for the exercise of scrutiny and recount of votes.
7. There shall be no order as to costs.
DATED, SIGNED and DELIVERED this 13th November, 2017 in the presence of all Counsels.
………………………….
S.M.S. SOITA
CHIEF MAGISTRATE