[2017] KEMC 110 (KLR)
The court held that the statutory requirement to deposit security for costs within 10 days of filing an election petition is mandatory and not a mere procedural formality. The petitioner failed to comply within the prescribed period, and although the court had previously and inadvertently granted him additional...
Source-derived case information.
- Citation
- [2017] KEMC 110 (KLR)
- Parties
- Applicant: Walter Shiundu Murunga; Respondent: Independent Electoral & Boundaries Commission; Respondent: Enock Otara (Returning Officer); Respondent: Sitanda Kennedy Kilwaki
- 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 Extension of Time to Deposit Security for Costs
- Outcome
- Conditional extension granted for deposit of security for costs.
- Legal Topics
- Security for Costs, Extension of Time, Election Petition Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Walter Shiundu Murunga
Applicant
Independent Electoral & Boundaries Commission
Respondent
Enock Otara (Returning Officer)
Respondent
Sitanda Kennedy Kilwaki
Respondent
Procedural Posture
Election Petition / Ruling on Application for Extension of Time to Deposit Security for Costs
Legal Issues
- 1 Whether the court can extend time for the petitioner to deposit security for costs beyond the statutory period under the Elections Act.
- 2 Whether failure to deposit security for costs within the prescribed period is fatal to the petition.
Ratio Decidendi
The court held that the statutory requirement to deposit security for costs within 10 days of filing an election petition is mandatory and not a mere procedural formality. The petitioner failed to comply within the prescribed period, and although the court had previously and inadvertently granted him additional time, this was irregular. However, considering the petitioner's affidavit confirming availability of funds and in the interest of justice, the court exercised discretion under Section 78(3) of the Elections Act to allow the petitioner a final opportunity to deposit the security by 2:00pm on the day of the ruling, failing which the petition would not proceed.
Court Disposition
Conditional extension granted for deposit of security for costs.
Orders
- The petitioner shall deposit the required security for costs before 2:00pm on the date of the ruling.
- The matter will be mentioned at 2:00pm for confirmation of compliance and for parties to take a pre-trial date.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT BUTALI
ELECTION PETITION NO. 1 OF 2017
(FORMERLY KAKAMEGA CME PETITION NO. 11 OF 2017)
WALTER SHIUNDU MURUNGA...............................PETITIONER
VERSUS
INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION.................................1ST RESPONDENT
ENOCK OTARA (RETURNING OFFICER)..........2ND RESPONDENT
SITANDA KENNEDY KILWAKI..............................3RD RESPONDENT
RULING
The petitioner filed a notice of motion under provisions 159 of Constitution, Rules 13 & 19 of the elections (parliamentary82 County Elections (Petition Rules -2017 and under a certificate of urgency.
The petitioner prays for an extension of time within which he is supposed to deposit security for costs as required under Section 78(2) (c) of the Elections Act 2017.
I have looked at this application together with the supporting affidavit of the Petitioner Mr.Walter Shiundu Murunga and l hereby rule as follows;-
Sections 78 of the Elections Act, 2011 Requires the Petitioner to deposit Security of costs within 10 days of filing the petition. In this particular petition the petitioner sought to file Kshs.100,000/- as security for costs before his petition can be heard and determined. The purpose of this requirement was to discourage frivolous and or vexatious litigants from challenging the results of an election. The other purpose is to cushion or recompense respondents who incur expenses in defending hopeless and unsuccessful election petitions. See the case of (Esposito Franco Vs. Amason Jeffah Kingi and 2 others.) Civil Appeal No. 248 of 2008 (In Nairobi).
The payment of the required amount is not merely a procedural requirement but an essential element that cannot merely be excused as a matter of judicial discretion. This fact was demonstrated in the case of (Said Buya Hiribae Vs. Hassan Dukicha Abdi & others) Mombasa Election Petition No. 7 of 2013.
In the Petition before me, the Petitioner lodged his petition on 6th September 2017 which was within the required statutory 28 days from the date of declaration of the results which was on 9th of August 2017. He had 10 days statutory time given to deposit his security of costs. He did not and his 10 days lapsed on 16th September, 2017. This matter was mentioned before me on 20th September, 2017 that was 4 days after his statutory period to deposit had lapsed; technically he already had 4 days extension without leave of court.
The Petitioner through his Advocates Mr. Oburu and Sereti made an oral application seeking to extend time to deposit his security of costs, an application which Mr. Wangila for the 3rd Respondent and Miss Wakoli for the 1st and 2nd Respondent objected to. The court therefore directed the Petitioner to file a formal application seeking extension of time within which to deposit the security for costs and gave a mention of the case on 6th of October 2017. This by itself was technically an extension of time and an opportunity for the Petitioner to deposit his security which would have dispensed of his certificate of urgency seeking extension of time, in short the court gave him an extension of time illegally but he did take advantage of the same to date he has 20 days from the date his statutory time of 10 days lapsed.
However, Paragraph 8 of the Petitioner’s supporting affidavit together with annexture thereof confirms to the court that he has funds to deposit the security. I hereby ruled under consideration of Section 78(3) that the Petitioner to deposit his security before 2:00pm today when the matter will be mentioned and parties will take a date for pre-trial where all other subsequent applications will be heard and determined.
EVANS W. MULEKA
S.R.M BUTALI
OCTOBER 6, 2017.