[2009] KEHC 1249 (KLR)
The court found that the petitioners had complied with the procedural requirements under Rules 23 and 24 of the National Assembly Elections (Election Petition) Rules, 1993 for withdrawal of the petition. The 1st respondent filed the necessary affidavits, and the absence of affidavits from the 2nd and 3rd respondents...
Source-derived case information.
- Citation
- [2009] KEHC 1249 (KLR)
- Parties
- Applicant: Roselyne Adhiambo Ochieng; Applicant: Charles Otieno Atula; Applicant: Mary Wangui Nderitu; Respondent: Ferdinand Ndung'u Waititu; Respondent: Electoral Commission of Kenya; Respondent: Fred N Mutua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 33 of 2008
- Procedural Posture
- Election Petition / Application for Withdrawal of Petition
- Outcome
- Petition withdrawn with leave; costs awarded to respondents.
- Judges
- A Ali-Aroni
- Legal Topics
- Withdrawal of Election Petition, Costs Award, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roselyne Adhiambo Ochieng
Applicant
Charles Otieno Atula
Applicant
Mary Wangui Nderitu
Applicant
Ferdinand Ndung'u Waititu
Respondent
Electoral Commission of Kenya
Respondent
Fred N Mutua
Respondent
Procedural Posture
Election Petition / Application for Withdrawal of Petition
Legal Issues
- 1 Whether the petitioners should be granted leave to withdraw the election petition.
- 2 Whether costs should be awarded to the respondents upon withdrawal of the petition.
Ratio Decidendi
The court found that the petitioners had complied with the procedural requirements under Rules 23 and 24 of the National Assembly Elections (Election Petition) Rules, 1993 for withdrawal of the petition. The 1st respondent filed the necessary affidavits, and the absence of affidavits from the 2nd and 3rd respondents was explained and accepted by the court. Having considered the submissions of counsel for all parties, the court exercised its discretion to grant leave for withdrawal of the petition and awarded costs to the respondents.
Court Disposition
Petition withdrawn with leave; costs awarded to respondents.
Orders
- Leave is granted to the petitioners to withdraw the petition.
- Costs are awarded to the respondents.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Election Petition 33 of 2008
IN THE MATTER OF THE NATIONAL ASSEMBLY AND PRESIDENTIAL
ELECTIONS ACT, CHAPTER 7 LAWS OF KENYA
AND
IN THE MATTER OF THE PRESIDENTIAL AND PARLIAMENTARY
ELECTIONS REGULATIONS AND NATIONAL ASSEMBLY ELECTION
(ELECTION PETITION) RULES
AND
IN THE MATTER OF THE ELECTION OFFENCES ACT, CHAPTER 66 LAWS OF KENYA
AND
IN THE MATTER OF THE BY – ELECTION FOR EMBAKASI CONSTITUENCY
BETWEEN
ROSELYNE ADHIAMBO OCHIENG ....…….....…..1ST PETITIONER
CHARLES OTIENO ATULA……………......………2ND PETITIONER
MARY WANGUI NDERITU…………….......……….3RD PETITIONER
VERSUS
FERDINARD NDUNGWAITITU………......…......1ST RESPONDENT
ELECTRORAL COMMISSION OF KENYA........2ND RESPONDENT
FRED N MUTUA…………………..…….........…..3RD RESPONDENT
RULING
1. The application before me is dated the 25th of September, 2009 brought pursuant to Rules 23 & 24 of the National Assembly Elections (Election Petition) Rules, 1993. Seeking leave to have the 1st, 2nd and third Petitioners withdraw the petition.
2. The 1st Respondent and his Advocate Mr Kioko Kilukumi filed affidavits in compliance with Rule 23 & 24 of the said Rules.
3. The 2nd and 3rd Respondents did not file replying affidavits Mr. Gikonyofor the 2nd and 3rd Respondent informed the Court that the Chairman of the (IIEC) Interim Independent Electoral Commission has been out of the country.
4 He urged the Court to dispense with the affidavit pursuant to Rule 23 (2) of the said Rules.
5. Having heard submissions by learned counsel for the parties, I hereby order as follows:-
1. Leave be and is hereby granted to the Petitioners to withdraw the Petition.
2. I award costs to the Respondents.
Dated and delivered at Nairobi this 6th day of November, 2009.
ALI- ARONI
JUDGE
6/11/2009
Ruling delivered in the presence
…………………………… for Petitioners
………………………….. for 1st Respondent
………………………… for 2nd and 3rd Respondents