Electoral Law – elections malpractices – where the election petition contested the election results for Maeni Ward County Assembly – claim that the electoral process for that area had been riddled with a lot of inconsistencies – whether the elections for Maeni Ward County had been conducted in accordance with electoral laws and constitutional principles – Elections Act 2011 section 83, Elections (General) Regulations 2012 regulations 59; 87, Election (Registration of voters) Regulations 2012 regulation 27

Election petition dismissed for having been filed by an unqualified advocate

Geoffrey Muli Mwalimu v Hussein Mwandia & 2 others

Election Petition No 1 of 2013

Senior Resident Magistrate’s Court at Mutomo

S.K Mutai, Ag Principal Magistrate

September 20, 2013

Reported By Nelson K Tunoi & Beatrice Manyal

Issues:

1. Whether the election petition, having been drawn and filled by an advocate who lacked a practicing certificate for the year 2013, was valid and competent before court.

Advocate Act cap 16 section 9 provided that:-

 “Subject to this Act, no person shall be qualified to act as an advocate unless:-

 a. He has been admitted as an advocate; and

 b. His name is for the time being on the roll; and

 c. He has in force a practicing certificate;

Advocate Act cap 16 section 34 stipulated as follows:-

“No unqualified person shall either directly or indirectly take instructions or draw or prepare any document or instrument:-

f. Relating to any other legal proceedings. Nor any such person accepts or receives, directly or indirectly, any fee, gain or reward for the taking of any such instructions or for the drawing or preparation of any such document of instrument”

Electoral law-election petition- petition challenging the election of the 1^st respondent as the validly elected as the member of county assembly for Ikutha Ward in Kitui south Constituency, Kitui County in the 4^th March, 2013, general elections- whether the election petition, having been drawn and filed by an advocate who lacked a practicing certificate for the year 2013, was valid and competent before court-  Constitution of Kenya, 2010 article 159(1) (d), Election Act 2012 section 80(1)(d), 84; Advocates Act cap 16 sections 9 & 34

Held:

1. At the time of drawing and filing of the petition, during the pre-trial conference, the highlighting of submissions and even up to the final determination of the case, the petitioner’s counsel did not have a valid current practicing certificate for the year 2013. The same was clearly confirmed by the letter from the Law Society of Kenya which showed that the petitioner’s advocate did not hold a current practicing certificate for the year 2013.
2. The petitioner’s counsel perfectly fit the description enunciated in section 2 of the Advocates Act of being an unqualified person, an unqualified person was a person who was not qualified under section 9 of that Act to act as an Advocate, subsequently, anything that the petitioner’s counsel did in terms of drawing filing and prosecuting the current petition was null and void ab initio since he was unqualified to act and practice as an advocate for his lack of current practicing certificate for the year 2013.
3. As the petition was drawn and filed by an unqualified person there was no valid petition challenging the election of the 1^st respondent, Hussein Mwandia as a member of County Assembly for Ikutha ward. He was thus duly and validly elected as the member of county assembly for Ikutha Ward in Kitui south Constituency, Kitui County in the 4^th March, 2013, general elections.

 Petition struck out with costs to the respondents

Electoral Law-election petition-county representative elections-conduct and results-whether there was compliance with the provisions of the Constitution and Elections Act- whether there was lawful conduct of Lower Savanah Ward County representative election-whether irregularities substantially affected election results- Elections Act, 2011 section 83