[2018] KECA 538 (KLR)
The court found that the 1st respondent failed to comply with mandatory procedural requirements by not filing the record of appeal within the prescribed 30-day period and by failing to provide security for costs as required in election petition appeals. The absence of any response or attendance by the 1st respondent...
Source-derived case information.
- Citation
- [2018] KECA 538 (KLR)
- Parties
- Appellant: Suleiman Kasuti Murunga; Applicant: The Independent Electoral and Boundaries Commission; Respondent: Moses Munyesi – Returning Officer, Kimilili Constituency; Respondent: Didmas Wekesa Barasa alias Didmas Mutua
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Election Petition 9 of 2018
- Procedural Posture
- Election Petition / Application to Strike Out Notice of Appeal
- Outcome
- Notice of appeal struck out; costs awarded to applicants and 2nd respondent.
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Striking Out Notice of Appeal, Election Petition Timelines, Security for Costs, Failure to File Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman Kasuti Murunga
Appellant
The Independent Electoral and Boundaries Commission
Applicant
Moses Munyesi – Returning Officer, Kimilili Constituency
Respondent
Didmas Wekesa Barasa alias Didmas Mutua
Respondent
Procedural Posture
Election Petition / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notice of appeal should be struck out for failure to file the record of appeal within the statutory period.
- 2 Whether the 1st respondent failed to comply with the requirement to provide security for costs in election petition appeals.
Ratio Decidendi
The court found that the 1st respondent failed to comply with mandatory procedural requirements by not filing the record of appeal within the prescribed 30-day period and by failing to provide security for costs as required in election petition appeals. The absence of any response or attendance by the 1st respondent further underscored the lack of compliance. Consequently, the court exercised its discretion under Rule 84 of the Court of Appeal Rules 2010, as read with Rule 4(2) of the Court of Appeal (EP) Rules, 2017, to strike out the notice of appeal. The court also awarded costs to the applicants and the 2nd respondent, emphasizing the importance of adhering to statutory timelines and...
Court Disposition
Notice of appeal struck out; costs awarded to applicants and 2nd respondent.
Orders
- The notice of appeal filed on 27th February, 2018 is struck out under Rule 84 of the Court of Appeal Rules 2010 as read with Rule 4(2) of the Court of Appeal (EP) Rules, 2017.
- Costs awarded to the applicants and the 2nd respondent.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: E. M. GITHINJI, HANNAH OKWENGU & J. MOHAMMED, JJ.A)
ELECTION PETITION CIVIL APPEAL NO. 9 OF 2018
BETWEEN
SULEIMAN KASUTI MURUNGA ............................... APPELLANT
VERSUS
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ............................. 1ST APPLICANT
MOSES MUNYESI – RETURNING OFFICER,
KIMILILI CONSTITUENCY ........................... 2ND RESPONDENT
DIDMAS WEKESA BARASA ALIAS
DIDMAS MUTUA ............................................... 3RD RESPONDENT
(An application by the 1st and 2nd Applicants seeking to strike out the Notice of appeal dated 27th February, 2018 filed against the judgment of Honourable Justice Anthony Murima delivered on 20th February, 2018 in
Bungoma Election Petition No. 2 of 2017)
**************************************
R U L I N G OF THE COURT
By a Notice of Motion dated 4th June, 2018 filed as Civil Application No. 32 of 2018 in Election Petition Appeal No. 9 of 2018, the applicants seek to have the notice of appeal filed by the 1st respondent and registered as Election Petition Appeal No. 9 of 2018 struck out with costs.
Although duly served with the motion and a hearing notice, the 1st respondent has not filed any response to the motion nor attended court for the hearing of the motion.
As it is evident from the court file that since the filing of the notice of appeal on 27th February, 2018 to date, the 1st respondent has not filed a record of appeal, the 1st respondent has failed to comply with section 85 A of the Election Act and Rule 8(5) of the Court of Appeal (EP) Rules that required the appeal to be filed within 30 days. The 1st respondent has also failed to provide any security as required under Rule 27 of the Court of Appeal (EP) Rule, 2017.
In light of these infractions, we allow the applicants’ motion and strike out the notice of appeal filed on 27th February, 2018 under Rule 84 of the Court of Appeal Rules 2010 as read with Rule 4(2) of the Court of Appeal (EP) Rules, 2017. We award costs to the applicants and the 2nd respondent.
Dated at Eldoret this 14th June, 2018.
E.M. GITHINJI
...........................
JUDGE OF APPEAL
HANNAH OKWENGU
.................................
JUDGE OF APPEAL
J. MOHAMMED
................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
…..................................
DEPUTY REGISTRAR