[2013] KEMC 7 (KLR)
The court found that the petitioner failed to comply with the mandatory procedural requirements for withdrawal of an election petition under the Elections Act, including gazettement and proper notification. Despite having ample time, the petitioner and his advocate did not appear or provide proof of compliance....
Source-derived case information.
- Citation
- [2013] KEMC 7 (KLR)
- Parties
- Applicant: Mohamed Dagane Osman; Respondent: The Independent Electoral and Boundaries Commission; Respondent: Abdi Osman Hassan
- Court
- Magistrate's Court
- Court Station
- Election Petition in Magistrate Courts
- Jurisdiction
- Kenya
- Case Number
- Election Petition 1 of 2013
- Procedural Posture
- Election Petition / Withdrawal Application
- Outcome
- Petition withdrawn with costs to the 1st respondent.
- Legal Topics
- Withdrawal of Petition, Compliance With Elections Act, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Dagane Osman
Applicant
The Independent Electoral and Boundaries Commission
Respondent
Abdi Osman Hassan
Respondent
Procedural Posture
Election Petition / Withdrawal Application
Legal Issues
- 1 Whether the petitioner complied with the procedural requirements under the Elections Act for withdrawal of an election petition.
- 2 Whether the application for withdrawal should be allowed in the absence of compliance and appearance by the petitioner or his advocate.
- 3 Whether costs should be awarded to the respondent upon withdrawal of the petition.
Ratio Decidendi
The court found that the petitioner failed to comply with the mandatory procedural requirements for withdrawal of an election petition under the Elections Act, including gazettement and proper notification. Despite having ample time, the petitioner and his advocate did not appear or provide proof of compliance. Given the statutory deadline for determination of election petitions and the repeated disregard for court procedure, the court allowed the application for withdrawal but ordered that costs be paid to the 1st respondent. The court further directed that the proceedings be typed and referred to the chief registrar for possible disciplinary action against the petitioner's advocate for...
Court Disposition
Petition withdrawn with costs to the 1st respondent.
Orders
- The application to withdraw the petition is allowed.
- Petitioner to pay costs to the 1st respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT OF KENYA AT WAJIR
ELECTION PETITION NO. 1 OF 2013
MOHAMED DAGANE OSMAN …………………………..1ST PETITIONER
VERSUS
THE INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION…………………………………………………….1ST RESPONDENT
ABDI OSMAN HASSAN…………………………………………2ND RESPONDENT
Court: There is no appearance on the part of the petitioner or his advocate. There is no prove that they have complied with the elections Act. Today is on 26/8/13 and there is a deadline for deciding election petition cases. This is a very clear case of an advocate who has taken this court for granted. The petitioner had over a month to gazette the application to withdraw the case. The court has not seen any prove to that extend despite dealing with the matter severally. Under the circumstances I have no choice but to allow the application to withdraw this case. There are only fourteen (14) days before the deadline of deciding election petition. I shall order that these proceedings be typed and the matter be taken up by the chief registrar to see if action can be taken against the petitioners advocate for taking this court for granted. The application is allowed with costs to the 1st respondent. Petitioner to pay the costs.
Court: Assessment of bill of costs on 19/9/13.
Linus Kassan – PM
26/8/2013