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S A J V A O G & 2 Others [2013] eKLR

Case Number: Petition 1 of 2013 Date Delivered: 01 Aug 2013

Judge: Philip Kiptoo Tunoi, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Willy Munywoki Mutunga, Smokin C Wanjala, Susanna Njoki Ndung'u

Court: Supreme Court of Kenya

Parties: S A J v A O G, Attorney-General & Z O G

Citation: S A J V A O G & 2 Others [2013] eKLR

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Safepak Limited V Asili Plastics Limited [2013] eKLR

Case Number: Civil Case 207 of 2013 Date Delivered: 01 Aug 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Safepak Limited v Asili Plastics Limited

Citation: Safepak Limited V Asili Plastics Limited [2013] eKLR

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John Kilei Ndiema & 26 Others V Matisi Co-op. Society Ltd [2013] eKLR

Case Number: Civil Case 59 of 2012. (Os) Date Delivered: 01 Aug 2013

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: John Kilei Ndiema & 26 others v Matisi Co-op. Society Ltd

Citation: John Kilei Ndiema & 26 Others V Matisi Co-op. Society Ltd [2013] eKLR

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S. J .S & Another V E. J. K Alias E. J. K & Another [2013] eKLR

Case Number: Succession Cause 279 of 2011 Date Delivered: 01 Aug 2013

Judge: Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: S. J .S & C.W.N v E. J. K Alias E. J. K & K.K.K

Citation: S. J .S & Another V E. J. K Alias E. J. K & Another [2013] eKLR

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Valeo (K) Limited V Barclays Bank Of Kenya Limited [2013] eKLR

Case Number: Civil Case 1483 of 2000 Date Delivered: 01 Aug 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Valeo (K) Limited v Barclays Bank Of Kenya Limited

Citation: Valeo (K) Limited V Barclays Bank Of Kenya Limited [2013] eKLR

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Geoffrey Muriuki Manene V Njoroge Ndungu [2013] eKLR

Case Number: Elc Suit 112 of 2012 Date Delivered: 01 Aug 2013

Judge: Pauline Nyamweya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Geoffrey Muriuki Manene v Njoroge Ndungu

Citation: Geoffrey Muriuki Manene V Njoroge Ndungu [2013] eKLR

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International Childcare Trust (Kenya) V David James Mbogo [2013] eKLR

Case Number: Civil Case 53 of 2012. (Os) Date Delivered: 01 Aug 2013

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: International Childcare Trust (Kenya) v David James Mbogo

Citation: International Childcare Trust (Kenya) V David James Mbogo [2013] eKLR

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Fredrick Gitoga Mwagire V James Kariuki Njururi [2013] eKLR

Case Number: Succession Cause 225 of 2002 Date Delivered: 01 Aug 2013

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: Fredrick Gitoga Mwagire v James Kariuki Njururi

Citation: Fredrick Gitoga Mwagire V James Kariuki Njururi [2013] eKLR

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Bernard Kimathi V Republic [2013] eKLR

Case Number: CR Misc Appl 40 of 2013 Date Delivered: 01 Aug 2013

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: Bernard Kimathi V Republic

Citation: Bernard Kimathi V Republic [2013] eKLR

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Orchid Pharmacy Limited V Southern Credit Banking Corporation & 3 Others [2013] eKLR

Case Number: Civil Case 389 of 2007 Date Delivered: 01 Aug 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Orchid Pharmacy Limited v Southern Credit Banking Corporation, Muga Auctioneers & General Merchants, High Energy Solutions Limited & Attorney General

Citation: Orchid Pharmacy Limited V Southern Credit Banking Corporation & 3 Others [2013] eKLR

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Benter Nyaboke Nyandiba V Fred Nyachae Omayio & 2 Others [2013] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 01 Aug 2013

Judge: N. Njagi - PM

Court: Election Petition in Magistrate Courts

Parties: Benter Nyaboke Nyandiba v Fred Nyachae Omayio, Returning Officer North Mugirango Constituency & Independent Eletoral & Boundaries Commission

Citation: Benter Nyaboke Nyandiba V Fred Nyachae Omayio & 2 Others [2013] eKLR

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Josphat Kiptoo Koech V Republic [2013] eKLR

Case Number: Cr. Revision 8 of 2013 Date Delivered: 01 Aug 2013

Judge: Joseph Kiplagat Sergon

Court: High Court at Kericho

Parties: Josphat Kiptoo Koech v Republic

Citation: Josphat Kiptoo Koech V Republic [2013] eKLR

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Resilah Nyangweso Makokha V Francis Shisia Eshitemi & Another [2013] eKLR

Case Number: Civil Suit 50 of 2010 Date Delivered: 01 Aug 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Busia

Parties: Resilah Nyangweso Makokha v Francis Shisia Eshitemi & Patrick Odaya Ongoma

Citation: Resilah Nyangweso Makokha V Francis Shisia Eshitemi & Another [2013] eKLR

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Domnic Akumu Nyajure V Robert Owuor Ojalla [2013] eKLR

Case Number: Civil Suit 51 of 2011 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Domnic Akumu Nyajure v Robert Owuor Ojalla

Citation: Domnic Akumu Nyajure V Robert Owuor Ojalla [2013] eKLR

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Palm Healthcare International Limited (In Receivership) V Development Bank Of Kenya Limited [2013] eKLR

Case Number: Civil Case 264 of 2010 Date Delivered: 31 Jul 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Palm Healthcare International Limited (In Receivership) v Development Bank of Kenya Limited

Citation: Palm Healthcare International Limited (In Receivership) V Development Bank Of Kenya Limited [2013] eKLR

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Jeremiah Musembi Kikuvi V Ali Ibido Yusuf & 2 Others [2013] eKLR

Case Number: Civil Case 164 of 2011 Date Delivered: 31 Jul 2013

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Jeremiah Musembi Kikuvi v Ali Ibido Yusuf, Mohamed Bute Galgal & District Land Registrar Lamu

Citation: Jeremiah Musembi Kikuvi V Ali Ibido Yusuf & 2 Others [2013] eKLR

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William Njogu Gacoki V Symon Muchiri Gachoki [2013] eKLR

Case Number: Succession Cause 271 of 2005 Date Delivered: 31 Jul 2013

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: William Njogu Gacoki v Symon Muchiri Gachoki

Citation: William Njogu Gacoki V Symon Muchiri Gachoki [2013] eKLR

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Moses Toroirich Tanui & 3 Others V Joseph Kipkemei A. Mengich & 7 Others [2013] eKLR

Case Number: E&L 978 of 2012 Date Delivered: 31 Jul 2013

Judge: Munyao Sila

Court: Environment and Land Court at Eldoret

Parties: Moses Toroirich Tanui & 3 Others v Joseph Kipkemei A. Mengich & 7 Others

Citation: Moses Toroirich Tanui & 3 Others V Joseph Kipkemei A. Mengich & 7 Others [2013] eKLR

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Phylip Kimeli Koech V David Kibungei Koech & Another [2013] eKLR

Case Number: E&L 331 of 2013 Date Delivered: 31 Jul 2013

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Phylip Kimeli Koech v David Kibungei Koech & another

Citation: Phylip Kimeli Koech V David Kibungei Koech & Another [2013] eKLR

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David Langat V St. Lukes Orthopeadic & Trauma Hospital Ltd & 2 Others [2013] eKLR

Case Number: E&L 56 of 2013 Date Delivered: 31 Jul 2013

Judge: Munyao Sila

Court: Environment and Land Court at Eldoret

Parties: David Langat v St. Lukes Orthopeadic & Trauma Hospital Ltd & 2 Othes

Citation: David Langat V St. Lukes Orthopeadic & Trauma Hospital Ltd & 2 Others [2013] eKLR

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Jackson Friday Mwafuga Mwaumba & Another V Abdulrahman Abdalla Kheri & 2 Others [2013] eKLR

Case Number: Land Case 94 of 2013 Date Delivered: 31 Jul 2013

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Jackson Friday Mwafuga Mwaumba & Constance Mboli Mwakio V Abdulrahman Abdalla Kheri, Omar Abdalla Kheri & Hamisi Mkono

Citation: Jackson Friday Mwafuga Mwaumba & Another V Abdulrahman Abdalla Kheri & 2 Others [2013] eKLR

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Golbo Construction Co. Ltd V National Water Conservation& Pipeline Corporation & Another [2013] eKLR

Case Number: Civil Suit 194 of 2012 Date Delivered: 31 Jul 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Golbo Construction Co. Ltd v National Water Conservation& Pipeline Corporation & Mohamoud Ibrahim

Citation: Golbo Construction Co. Ltd V National Water Conservation& Pipeline Corporation & Another [2013] eKLR

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Philip Okwama Adogo V Michae T Adede & Another [2013] eKLR

Case Number: Land Case 81 of 2012 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Philip Okwama Adogo v Michae T Adede & Clerk Town Council of Ahero

Citation: Philip Okwama Adogo V Michae T Adede & Another [2013] eKLR

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Commercial Bank Of Africa Ltd V David Njau Nduati [2013] eKLR

Case Number: Civil Case 231 of 2012 Date Delivered: 31 Jul 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Commercial Bank Of Africa Ltd v David Njau Nduat

Citation: Commercial Bank Of Africa Ltd V David Njau Nduati [2013] eKLR

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Republic V Siaya Land Disputes Tribunal & Another & 2 Others [2013] eKLR

Case Number: Hcc Misc. Appl.247 of 2008 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Republic v Siaya Land Disputes Tribunal & another & 2 others

Citation: Republic V Siaya Land Disputes Tribunal & Another & 2 Others [2013] eKLR

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Christopher Ogutu V Maurice Omolo Pinto & 4 Others [2013] eKLR

Case Number: HCC 164 of 2011 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Christopher Ogutu v Maurice Omolo Pinto & 4 others

Citation: Christopher Ogutu V Maurice Omolo Pinto & 4 Others [2013] eKLR

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Duncan Otieno Waga V Attorney General [2013] eKLR

Case Number: Cause 89 of 2013 Date Delivered: 31 Jul 2013

Judge: Onesmus Ndambuthi Makau

Court: Employment and Labour Relations Court at Mombasa

Parties: Duncan Otieno Waga v Attorney General

Citation: Duncan Otieno Waga V Attorney General [2013] eKLR

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Jane Kanda Kipkorir V Dorcas Chebet & 5 Others [2013] eKLR

Case Number: Civil Suit 86 of 2010. Date Delivered: 31 Jul 2013

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Jane Kanda Kipkorir v Dorcas Chebet, Mr Kundu, Jeremiah Johana, Johnathan Kapkoke, Kipkorir Kipkala & Luka Chebet

Citation: Jane Kanda Kipkorir V Dorcas Chebet & 5 Others [2013] eKLR

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Republic V Busia Municipality Land Disputes Tribunal Exparte Absolom Namani Wasike & Another [2013] eKLR

Case Number: Miscelleneous Civil Application 100 of 2011 Date Delivered: 31 Jul 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Busia

Parties: Republic v Busia Municipality Land Disputes Tribunal Exparte Absolom Namani Wasike & Justo Oundo Okumu

Citation: Republic V Busia Municipality Land Disputes Tribunal Exparte Absolom Namani Wasike & Another [2013] eKLR

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Sylvia Mwakwanyaga V Joseph Maina Nganga & 5 Others [2013] eKLR

Case Number: Elc Suit 405 of 2013 Date Delivered: 31 Jul 2013

Judge: John Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Sylvia Mwakwanyaga v Joseph Maina Nganga, Geofrey Kinyanjui Mungai, Elizabeth Nyawira Mbugua, Jonathan Sorimpan Massore, Joel Mutarura Karanja & Susan Wamaitha Nyokabi

Citation: Sylvia Mwakwanyaga V Joseph Maina Nganga & 5 Others [2013] eKLR

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William Njogu Gacoki V Symon Muchiri Gachoki [2013] eKLR

Case Number: Succession Cause 271 of 2005 Date Delivered: 31 Jul 2013

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: William Njogu Gacoki v Symon Muchiri Gachoki

Citation: William Njogu Gacoki V Symon Muchiri Gachoki [2013] eKLR

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William Njogu Gacoki V Symon Muchiri Gachoki [2013] eKLR

Case Number: Succession Cause 271 of 2005 Date Delivered: 31 Jul 2013

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: William Njogu Gacoki v Symon Muchiri Gachoki

Citation: William Njogu Gacoki V Symon Muchiri Gachoki [2013] eKLR

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William Njogu Gacoki V Symon Muchiri Gachoki [2013] eKLR

Case Number: Succession Cause 271 of 2005 Date Delivered: 31 Jul 2013

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: William Njogu Gacoki v Symon Muchiri Gachoki

Citation: William Njogu Gacoki V Symon Muchiri Gachoki [2013] eKLR

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Risper Auma Okoth V Angeline Auma Odera & Another [2013] eKLR

Case Number: Civil Suit 140 of 2012 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Risper Auma Okoth v Angeline Auma Odera & Municipal Council of Kisumu

Citation: Risper Auma Okoth V Angeline Auma Odera & Another [2013] eKLR

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Zaverchand Ramji Maya Gudka & Another V Meridian Medical Centre [2013] eKLR

Case Number: Civil Case 125 of 2012 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Zaverchand Ramji Maya Gudka & Manoj Zaverchand Gudka v Meridian Medical Centre

Citation: Zaverchand Ramji Maya Gudka & Another V Meridian Medical Centre [2013] eKLR

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Zaverchand Ramji Maya Gudka & Another V Meridian Medical Centre [2013] eKLR

Case Number: Civil Case 125 of 2012 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Zaverchand Ramji Maya Gudka & Manoj Zaverchand Gudka v Meridian Medical Centre

Citation: Zaverchand Ramji Maya Gudka & Another V Meridian Medical Centre [2013] eKLR

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Zaverchand Ramji Maya Gudka & Another V Meridian Medical Centre [2013] eKLR

Case Number: Civil Case 125 of 2012 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Zaverchand Ramji Maya Gudka & Manoj Zaverchand Gudka v Meridian Medical Centre

Citation: Zaverchand Ramji Maya Gudka & Another V Meridian Medical Centre [2013] eKLR

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Zaverchand Ramji Maya Gudka & Another V Meridian Medical Centre [2013] eKLR

Case Number: Civil Case 125 of 2012 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Zaverchand Ramji Maya Gudka & Manoj Zaverchand Gudka v Meridian Medical Centre

Citation: Zaverchand Ramji Maya Gudka & Another V Meridian Medical Centre [2013] eKLR

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Dorice Achola Odero & Another V First Community Bank Ltd [2013] eKLR

Case Number: Land Case 55 of 2013 Date Delivered: 31 Jul 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Dorice Achola Odero, Stephen Karanja T/A/ Dalali Traders v First Community Bank Ltd

Citation: Dorice Achola Odero & Another V First Community Bank Ltd [2013] eKLR

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Salesians Of Don Bosco & Another V Dagoreti Youth Centre Limited [2013] eKLR

Case Number: ELC 653 of 2011 Date Delivered: 31 Jul 2013

Judge: John Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: The Salesians of Don Bosco, Registered Trustees Kenya v Dagoreti Youth Centre Limited

Citation: Salesians Of Don Bosco & Another V Dagoreti Youth Centre Limited [2013] eKLR

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Victoria Furnitures Limited V Zadok Furnitures Systems Limited [2013] eKLR

Case Number: Civil Case 445 of 2010 (O.S.) Date Delivered: 31 Jul 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Victoria Furnitures Limited v Zadok Furnitures Systems Limited

Citation: Victoria Furnitures Limited V Zadok Furnitures Systems Limited [2013] eKLR

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Evans Nyambaso Zedekiah & Another V Independent Electoral And Boundaries Commission & 2 Others [2013] eKLR

Case Number: Election Petition 10 of 2013 Date Delivered: 31 Jul 2013

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: Evans Nyambaso Zedekiah & Mabutu Nyakeriga v Independent Electoral and Boundaries Commission,Shem Nyanga’u & Mary Sally Keraa Alias Mary Sally Otara

Citation: Evans Nyambaso Zedekiah & Another V Independent Electoral And Boundaries Commission & 2 Others [2013] eKLR

An election petition will be struck out for failure to effect service of the petition on the respondent and for failure to deposit security for costs with the court.

Evans Nyambaso Zedekiah and Mabutu Nyakeriga v Independent Electoral and Boundaries Commission and 2 others

Election Petition No. 10 of 2013

High Court at Kisii

R N Sitati, J

July 31 , 2013

Reported by Marietta Gachegu

The petitioners took over the petition originally filed by Ezekiel Onchieku, which challenged the election of the 3rd respondent in the case, as the Kisii County Woman Representative to the National Assembly following the general election held on March 4th 2013.

The 3 respondents filed applications by way of Notice of Motion to have the petition struck out on the grounds, inter alia that the petition was never served on the 3rd respondent and that deposit for security of costs was made 4 days outside the stipulated time.

Issues

  1. What were the consequences of non-service on the respondent of an electoral petition?
  2. Whether security by deposit was made in accordance with the law and if not what were the consequences of such non-compliance?
  3. Whether failure by the petitioners to give particulars in the petition was fatal to the petition?

Electoral Law-election petition- service process whether the petition was effectively served on the 3rd respondent and if not what were the consequences of non-service- Constitution of Kenya, 2010, articles 50 (2) (c) 87(1)(2) and (3).

Electoral Law-election petition-security for costs-where the security for cost was deposited out of time-- whether security by deposit made out of time can be validated by the court- Constitution of Kenya 2010 articles 87(1)(2) and (3), 159 2(d)

Electoral Law-election petition-application to strike out petition for failure to comply with statutory form- Whether failure by the petitioners to give particulars in the petition was fatal to the petition – Constitution of Kenya articles 159 2(d)

Constitution of Kenya, 2010 Article 50 (2)(c) provides :-

Every accused person has the right to a fair trial which includes the right to have adequate time and facilities to prepare a defence.

Constitution of Kenya 2010 Article 87 provides:-

(1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.

(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission

 (3) Service of a petition may be direct or by advertisement in a newspaper with national circulation.

Constitution of Kenya 2010 Article 159 (2) (d) provides:-

Justice shall be administered without undue regard to procedural technicalities.

The Elections Act No.24 Of 2011 section 77

(1) A petition concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Commission.

(2) A petition may be served personally upon a respondent or by advertisement in a newspaper with national circulation.

The Elections Act No.24 Of 2011 section 78 (2) and (3)

(1) A petitioner shall deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petition under this Part.

(2) A person who presents a petition to challenge an election shall deposit—

(a) one million shillings, in the case of a petition against a presidential candidate;

(b) five hundred thousand shillings, in the case of petition against a member of Parliament or a county governor; or

(c) one hundred thousand shillings, in the case of a petition against a member of a county assembly.

(3) Where a petitioner does not deposit security as required by this section, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent's costs

Rule 4 of the Election Rules states:-

(1) The overriding objective of these Rules is to facilitate the just, expeditious proportionate and affordable resolution of election petitions under the Constitution and the Act.

(2) The court shall, in the exercise of its powers under the Constitution and the Act or in the interpretation of any of the provisions in the Rules, seek to give effect to the overriding objective specified in sub-rule (1).

(3)A party to an election petition or an advocate for the party shall have an obligation to assist the court to further the overriding objective and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court.

 Rule 5 of the Election Rules states:-

(1) For the purpose of furthering the overriding objective provided in rule 4, the court and all the parties before it shall conduct the proceedings for the purpose of attaining the following aims –

  1. the just determination of the election petition; and
  2. the efficient and expeditious disposal of an election petition within the timelines provided in the Constitution and the Act.

 

 

Held:

  1. The petitioner had a choice between two modes of service of the petition: either to effect personal service or to effect service by way of advertisement in a newspaper which has national circulation.  In the instant case, the petitioners chose to effect service personally yet they failed to serve the 3rd Respondent with the petition. The evidence contained in the affidavit of service of the process server was unconvincing and it was unlikely that the 3rd Respondent had been personally served with the petition as was alleged by the process server.
  2. Service of the petition upon the respondent was not a matter of choice by the petitioners.  It was a mandatory step that had to be taken by the petitioners as a prerequisite for a fair hearing of the petition as provided under the Constitution. Failure to serve the 3rd respondent denied her the opportunity and adequate time to prepare her defence.
  3. The 3rd Respondent only got knowledge of the petition when the original petitioner went to her and informed her that he intended to withdraw the petition he had filed against her but mere knowledge on her part was not enough to discharge the petitioners from their Constitutional and statutory obligation of effecting service.
  4. As a general principle in ordinary civil matters the courts aimed to sustain rather than terminate a suit through striking out of pleadings and that power was therefore exercised sparingly and cautiously. Election petitions were not ordinary suits as their outcome had economic and social effects on the public, particularly if the petition was successful and resulted in a by-election. The instant application to strike out was anchored on a fundamental right of the 3rd Respondent to be served with process within the stipulated time in accordance with the mandatory provisions of the law.
  5. Prescriptions of procedure should not be a barrier to dispensing substantive justice but that principle of preferring merit over form was not immutable or indisputable. The failure by the petitioners to serve the petition upon the 3rd Respondent was not a mere technicality.  That failure went to the root of the entire petition for without service the 3rd Respondent was denied her right to a fair hearing by being denied the opportunity and time to prepare her defence. The petitioners were under a mandatory duty to effect service of the petition upon the 3rd Respondent and having failed to do so, the petition could not stand.
  6. Security for costs by deposit of money was not made by the petitioners within the requisite period of ten days set out in the statute. The deposit of security for costs was a substantive issue that went to the root of the proceedings as non-payment of the same deprived the court of the jurisdiction to deal with the matter further. That requirement for deposit of security for costs kept away those who frivolously filed cases with little or no chance of success and those who had no intention of paying the costs once they lost their cases.
  7. The aim of the rules on election petitions was to ensure the efficient and expeditious disposal of the election petition within the timelines set by the Constitution and the Act.  The petitioners were not entitled to the application of the overriding objective as they had flouted the law more by not seeking leave of the court to deposit the security out of time or offered an explanation for the delay. In light of the foregoing reasons there was no reason to validate the late deposit of security made by the Petitioners in the case.
  8. Election Rules clearly set out the contents and form of an election petition that a petitioner had to comply with so as to give a chance to the Respondents to know what case they were faced with and how they might prepare their defence. Where material particulars were not included in the petition, then such a petition was fatally incompetent.

Application allowed. Petition struck out.

 

Cases

East Africa

1.Ahmed, Amina Hassan v Returning Officer Mandera County & 2 others Election Petition No 4 of 2013 –(Applied)

2.Chelaite v Njuki & others (No 3) (2008) 2 KLR (EP) 209 –(Applied)

3.Cidi, Kumbatha Naomi v County Returning Officer Kilifi & 3 others Election Petition No 13 of 2013 –(Explained)

4.DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1 –(Explained)

5.Dolal, Nasir Mohammed v Duale Aden Bare & others Election Petition No 28 of 2008 –(Followed)

6.Franco, Esposito v Amason Jeffah Kingi & 2 others Civil Appeal No 248 of 2008 –(Followed)

7.Franco, Esposito v Amason Kingi & 2 others Judicial Review Miscellaneous Petition No 292 of 2008 –(Applied)

8.Joho v Nyange & another (No 4) (2008) 3 KLR (EP) 500 –(Followed)

9.Karaba v Kariuki & 2 others [2010] KLR 235 –(followed)

10.Karatina Garments Limited v Nyanarua [1976] KLR 94 –(Mentioned)

11.Kibaki v Moi [2000] 1 EA 115 –(Followed)

12.Kibaki, Mwai v Daniel Toroitich Arap Moi Civil Appeal No 172 of 1999 –(Mentioned)

13.Kimanzi, Patrick Ngeta v Marcus Mutua Muluvi & 2 others Petition No 8 of 2013 –(Applied)

14.Kimutai v Lenyongopeta & 2 others [2005] 2 KLR 317 –(Explained)

15.MB Automobile v Kampala Bus Service [1966] EA 480 –(Mentioned)

16.M’Mithiaru v Maore & others (No 2) [2008] 3 KLR (EP) 730 –(Followed)

17.Maro, Mohamed Odha v County Returning Officer Tana River & 3 others Election Petition No 15 of 2013 –(Explained)

18.Mohamed v Bakari & 2 others [2005] 2 KLR 196 –(Followed)

19.Mohamed, Abdikham Osman & another v Independent Electoral and Boundaries Commission & others Election Petition No 2 of 2013 –(Approved)

20.Mohamed, Fatuma Zainabu v Ghati Dennitah & 10 others Election Petition No 6 of 2013 –(Explained

21.Munyasia, Bernard Mwendwa v Charity Ngilu & others Election Petition No 1 of 2008 –(Mentioned)

22.Mututho v Kihara and 2 others [2008] KLR 10 –(Applied)

23.Ng’ang’a & another v Owiti & another (No 2) (2008) 1 KLR (EP) 799–(Followed)

24.Odinga, Raila & 5 others v Independent Electoral and Boundaries Commission & 3 others Petition No 5 of 2013 –(Explained)

25.Omiti v Osebe & 2 others [2010] 1 KLR 115 –(Followed)

26.Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 –(Explained)

Statutes

East Africa

1.Civil Procedure Act (cap 21) In general–(Interpreted)

2.Constitution of Kenya, 2010 articles 50(c); 87(1); 159(2)(d) –(Interpreted)

3.Elections Act, 2011 (Act No 24 of 2011) sections 76(1); 77; 78(1),(2)(b),(3); 86(1)–(Interpreted)

4.Elections (Parliamentary and County Elections) Petition Rules, 2013 (Act No 24 of 2011 Sub Leg) rules 4, 5, 10, 11(1); 13(1); 17; 20; 36–(Interpreted)

5.Interpretation and General Provisions Act (cap 2) section 59–(Interpreted)

6.National Assembly and Presidential Elections Act (Repealed) (cap 7) section 21–(Interpreted)

7.National Assembly (Powers and Priviledges) Act (cap 6) section 6–(Interpreted)

8.Presidential and Parliamentary Elections Regulations (cap 7 Sub Leg) –(Interpreted)

Advocates

1.Mr Minda for the Petitioners

2.Mr Odhiambo Kanyangi for the 1st and 2nd Respondents

3.Miss Aron for the 3rd Respondent

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Leah Nyamuiru Magua V Attorney General & 2 Others & 12 Others [2013] eKLR

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Judge: Weldon Kipyegon Korir

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Parties: Leah Nyamuiru Magua v Attorney General, Director Public Prosecutions & Chief Magistrate, Kiambu & Henry Kamau Magua, John Gaceru Magua, Macharia Magua, Mbutia Magua, Racheal Mukuhi Magua, John Mungai Magua, David Njuguna Magua, Violet Waithira Magua, Moses Chege Magua, Nyambura Ngobe, Kabetu Machu & Jackline Wangui Njuguna

Citation: Leah Nyamuiru Magua V Attorney General & 2 Others & 12 Others [2013] eKLR

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Parties: Republic v Municipal Council Of Busia & Clerk, Municipal Council of Busia & Exparte Julius Orina Manwari P/A Manwari & Co. Advocates

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Parties: Bernard Chege Rwenji & Esther Wanjiku Gachambi v Koina Wambuku

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Case Number: Election Petition 6 of 2013 Date Delivered: 30 Jul 2013

Judge: George Vincent Odunga

Court: High Court at Mombasa

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Citation: Nuh Nassir Abdi V Ali Wario & 2 Others [2013] eKLR

 

Court allows cross-examination on extracts from a document which formed part of evidence in the matter

Nuh Nassir Abdi v Ali Wario & 2 others

Election Petition No 6 of 2013

High Court at Mombasa

G V Odunga, J

July 30, 2013

Reported by Phoebe Ida Ayaya and Derrick Nzioka

Facts:

The applicant applied that the evidence elicited from the 2nd respondent in cross-examination by the petitioner’s counsel be expunged from the record since parties before court ought to proceed based on the evidence before court in its entirety and not just extracts. In the alternative the court to direct the petitioner to supply complete polling day diaries as it was his duty to ensure that the whole document was placed before the court having produced them in the first place.

Issues:

  1. Whether evidence elicited in cross-examination could be expunged from the record on the grounds that the document relied on in the cross-examination was incomplete.
  2. Whether by reason of the evidence being incomplete an adverse inference ought to be drawn hence the cross-examination be expunged.

Electoral Law – election petition – evidence elicited from cross-examination – cross-examination of witness on an extract from a document which was part of evidence – where the applicant averred that the evidence which was to be used in cross-examination was incomplete – where the applicant averred that the incomplete evidence would prejudice their case – where the respondent averred that the evidence was an extract from another document which was in the custody of one of the applicants and hence was not prejudicial to them – where an application for the evidence to be expunged from the record was made – whether the court could allow the evidence to be expunged from the record yet the petitioner had already been cross-examined on the same – whether the failure to provide complete evidence by a party amounted to an alteration of the case – Election (Parliamentary and County Elections) Petition Rules, rules 4(3) & rule 5(2); Constitution of Kenya, 2010 article 159(2)(d)

Held:

  1. The Election Petition Rules were clear that annextures and documents which came into the courts possession as a result of court orders made, such as in the course of the scrutiny, formed evidence.
  2. Cross-examination on the said diaries was allowed so as to place all the parties on equal footing as the petitioner had already been cross-examined by the 1st respondent’s counsel on the said documents, and to bar the petitioner’s advocate from cross-examining the 2nd respondent on the said documents would be unjust.
  3. It was not for the court to direct parties on how to conduct their cases. To expect the court to direct the parties to adduce complete documents would be to invite the court to turn into an investigative forum rather than an independent arbiter. A party who decided to adduce only part of the documents ran the risk of the court drawing adverse inference on it if it turned out that the same was deliberately omitted with a view to gain an unfair advantage over the other parties.
  4. The contested polling day diaries were ordered to be availed to the court by the 3rd respondent during the process of the scrutiny and none of the parties contended that the court was not permitted to resort to the documents availed during the scrutiny in reaching a fair determination in the petition.
  5. The respondents had an opportunity of raising an issue as to the conduct of the cross-examination while it was being conducted, which they did, a decision was made and the hearing continued. To raise the same issue after the end of the cross-examination was meant to derail or delay the expeditious disposal of this petition. Under rule 4(3) of the Election Petition Rules parties were obligated to assist the court to further the overriding objective which was to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Elections Act and, to that effect, to participate in the processes of the court and comply with the directions and orders of the court. Further, rule 5(2) of the aforesaid rules empowered the court where a party breached any requirement of the rules, to issue orders, and impose penalties, as it considered just and fit including an order for payment of costs
  6. Whereas the court was properly entitled to rely on the documents supplied to the Deputy Registrar during the scrutiny ordered, the extracts relied upon in cross-examination were not necessarily exhibits in the case hence the objection to their use was unnecessary.
  7. The documents availed during the process of scrutiny were proper documents for cross-examination and as long as the extent of reliance on them did not alter the petitioner’s case there was no reason why they ought to be expunged.
  8. As to whether they were an attempt to alter the case pleaded was a matter which could only be dealt with when the court was considering evidence and pleadings.

Application dismissed.

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Case Number: Elc. 288 Of 2012 Date Delivered: 30 Jul 2013

Judge: John Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: George Gichamu Gakure v Hanna Mwihaki Njoro & Stephen Mburu Mungai

Citation: George Gichamu Gakure V Hanna Mwihaki Njoro & Another [2013] eKLR

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