[2017] KEMC 25 (KLR)
The court held that applications for scrutiny of election materials must be made before or during the pre-trial conference, as mandated by Rule 15(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. Allowing such an application after the close of parties' cases would disrupt the agreed...
Source-derived case information.
- Citation
- [2017] KEMC 25 (KLR)
- Parties
- Applicant: Hon Nixon Sunte Karaine; Respondent: Hon Paul Kipamet Matuyia; Respondent: Returning Officer IEBC Kajiado East Sub County; Respondent: The IEBC
- 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 Interlocutory Application for Scrutiny of Election Materials
- Outcome
- application for scrutiny of election materials rejected
- Legal Topics
- Scrutiny of Election Materials, Pre Trial Procedure, Interlocutory Applications, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon Nixon Sunte Karaine
Applicant
Hon Paul Kipamet Matuyia
Respondent
Returning Officer IEBC Kajiado East Sub County
Respondent
The IEBC
Respondent
Procedural Posture
Election Petition / Ruling on Interlocutory Application for Scrutiny of Election Materials
Legal Issues
- 1 Whether the court can allow an application for scrutiny of election materials after the close of parties' cases.
- 2 Whether such an application can be made orally and without the presence of all affected parties.
- 3 Whether the application for scrutiny should have been raised at the pre-trial stage.
Ratio Decidendi
The court held that applications for scrutiny of election materials must be made before or during the pre-trial conference, as mandated by Rule 15(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. Allowing such an application after the close of parties' cases would disrupt the agreed case management and potentially prejudice absent parties. The court found that the application was improperly timed, procedurally defective as it was made orally and in the absence of affected respondents, and appeared to be intended to delay the proceedings. Consequently, the application was rejected to uphold the integrity of the case management process and ensure fairness to...
Court Disposition
application for scrutiny of election materials rejected
Orders
- The oral application for scrutiny of Forms 36A and 35B and examination of SD cards is rejected.
- No orders as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THECHIEF MAGISTRATES COURTAT KAJIADO
ELECTION PETITION CASE NO.1 OF 2017
HON NIXON SUNTE KARAINE ………….………….......……… 1ST PETITIONER
VERSUS
HON PAUL KIPAMET MATUYIA …………………..…………. 1ST RESPONDENT
RETURNING OFFICER IEBC KAJIADO EAST SUB CO......... 2ND RESPONDENT
THE IEBC …………………….………………….……………. 3RD RESPONDENT
RULING ON 1ST RESPONDENTS APPLICATION FOR SCRUTINY OF ELECTION MATERIALS
This Petition comes up for highlighting of submissions by counsel at the close of the petitioner’s case and at the close of the Respondents’ cases. Mr. Muaka appeared representing the petitioner while at the same time holding brief for Mrs Koech for the 2nd and 3rd Respondents.
Mr. Nyantika appeared for the 1st Respondent. Parties requested for another date to do the highlighting. Mr. Muaka then orally addressed the court making in an application that the court be guided by the Deputy Registrar’s Report on original Forms 36A and 35B which the court should order availed before it.
Secondly that the SD cards be read by IT experts from both parties and a report made to court.
He relied on the Election (Parliamentary and County Elections) petitions Rules. He specifically pointed out Rules 18, 21, and 37.
Mr Nyantika for the 1st Respondent of course opposed, pointing out that it is too late in the day as that ought to have been dealt with at the pre trial stage and leave of the court has not been sought.
Mr. Muaka said further that he had no instructions to represent the 2nd and 3rd Respondents in that aspect though he was holding brief for counsel.
Part V of the Elections (Parliamentary and County Elections) petitions Rules 2017 lays down the procedure for handling Election Petitions. This part is to do with case management. It provides for pre trial conference, which under Rule 15 is concerned in mandatory terms.
The aim of the pre trial is to come up with contested issues and plan for Hearing of the petition to conclusion.
At rule 15 (2) it reads;-
“An election court shall not allow any interlocutory application to be made on conclusion of the pre-trial conference, if the interlocutory application could have, by its nature been briefed before the commencement of the hearing of the petition”
The court is being asked at the close of parties case to call up Forms 36A and 35B for scrutiny by the DR.
This was a valid application had it come before pre trial conferencing for the following reasons;
a. Scrutiny of the Elections documents would have been agreed upon as an issue for determinations,
b. The examination of CD cards by IT experts could have formed part of the issues for determination.
To allow an application, such as this at this stage would mean going backs to framing issues. Parties had agreed in issues and have had evidence on that. The application is being raised in the absence of the 2nd and 3rd Respondents who would be most affected were the court to grant the request.
What counsel is raising are non issues. He is interfering with the management of the hearing and determination of the petition as earlier planned.
What the petitioner seeks to achieve is not even clear. Such an application cannot be orally made and at this stage. It appears as meant at delaying this petition. The court will not allow it. It is rejected.
Dated this 16th November, 2017, signed and delivered in the presence of Muaka for the petitioner and Nyantika for the 1st Respondent.
S.M SHITUBI – CM
16/11/2017