How to File Presidential Election Petition in Kenya
Chapter Ten of the New Constitution of Kenya enshrines the Judiciary
as the third arm of Government after the legislative and executive.
Under Article 163(1) of the Constitution of Kenya (1), There
is established the Supreme Court, which shall consist of –
a. The chief
justice ,who shall be the
president of the court;
b. The Deputy Chief Justice ,who shall
I. Deputize for Chief Justice; and
II. Be the vice- president of the court; and
c.
Five other judges
2.) The Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.
2.) The Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.
3.) The Supreme
Court shall have-
a.
Exclusive original jurisdiction to hear and determine disputes relating to elections
to the office of the President arising under article 140;and
b.
Subject
to clause (4) and (5), appellate jurisdiction to hear and determine appeals from-
I. The court of Appeal; and
II. Any other court or tribunal as prescribed by
national legislation.
4.) Appeals shall lie from the Court of Appeal to the Supreme
Court –
a). as of right in any case involving the interpretation or
application of this constitution; and
b.) in any other case in which the Supreme Court or the
Court of Appeal, certifies that a matter of general public importance is involved,
subject to clause (5)
5. A certification by
the Court of Appeal under clause (4) may be reviewed by the Supreme Court, and
either affirmed, varied or overturned.
(6) The Supreme Court may give an advisory opinion at the
request of the national government, any State organ, or any county government
with respect to any matter concerning county government.
7) All courts, other than the Supreme Court, are bound by
the decisions of the Supreme Court.
8) The Supreme Court shall make rules for the exercise of
its jurisdiction.
9) An Act of Parliament may make further provisions for the
operation the Supreme Court.
Under Article 163 (8) above, the Supreme Court shall make
rules for the exercise of its jurisdiction.
These rules are now cited as the Supreme Court (Presidential
Election Petition) Rules, 2013, which are to be followed in the hearing and
determination of the presidential election on the question as to validity of
the president.
Question as to
Validity of Presidential election
Under article 140(1), a person may file a petition in the Supreme
Court to challenge the election of the President-elect within seven days after
the date of the declaration of the results of the presidential election.
2. Within fourteen days
after filing a petition under clause (i), the Supreme Court shall hear and determine
the petition and its decision shall be final.
3. If the Supreme Court determines the election of the
President-elect to invalid, a fresh election shall be held within sixty days
after the determination.
The Supreme Court
Act, (No 7 of 2011)
The primary legislation that operationalize the Supreme
Court is: the Supreme Court Act, (No 7 of 2011)
The rules envisaged under Article 163 (8) are now cited as:
The supreme Court (Presidential
Election Petition) Rules, 2013.
The objectives of these rules are to enable the
Supreme Court to exercise its exclusive original jurisdiction to hear
and determine disputes relating to the election to the office of the President
arising under Article 140
Under Rule 4, the scope of these rules applies to petition
filed in relation to election to the office of the president and includes-
a.
Petitions arising before the
polling date relating to nominations by the commission;
b.
Petitions arising upon declaration by the Commission
of the candidates to contest the fresh election under article 138(5) of the
constitution.
Article 138(5) states that; if no Candidates are elected,
afresh election shall be held within thirty days after the previous election
and in that fresh election the only candidate shall be-
a.
The candidate, or dandidates,who received the
greatest number of votes; and
b.
The candidate, or candidates, who received
second greatest number of votes,
Under rule 19(1) respecting grounds for
petition-
1.
A person may be filing a petition calling into
question the validity of the election of the president.
2.
The grounds upon which a petition under sub-rule
(1) may be filled include-
a.
The validity of the conduct of presidential
election;
b.
The validity of the qualification of a president-elect;
c.
The commission of an election offence as
provided under part vi of the Elections ACT; or
d.
Any other ground that the Court deems sufficient,
Provided such as grounds shall not be frivolous vexatious or scandalous.
FIRST SCHEDULERule 1BPROVISIONS RELATING TO PETITIONS AND AFFIDAVITS
1.
A petition is
considered filed upon-
a.
Payment of the prescribed court fees;
b.
depositing the security for costs, and
c.
Stamping by the registry.
2.
A petition may be filled by several persons who
may be joined as co petitioners. Petition
shall be joined as co-petitioners.the petition shall be signed by the
petitioner or all the petitioners if they are more than one, or by the authorized
advocate.
3.
The petition shall be divided into paragraphs,
numbered consecutively, each paragraph being confined to a distinct portion of the
subject, and shall be printed or typed legibly.
4.
The petition shall briefly set out the facts and
grounds to be relied on to sustain the relief claimed.
5.
The petitioner shall ledge along with the petition,
at least right copies of the petition and all documents which accompany it.
6.
The affidavit in support of the petition is
made personally by the petitioner or by
one of the petitioners if more than one
and shall:-
a.
Contain the grounds on which relief is sought,
setting out with sufficient particularly the facts relied on by the petitioner
or petitioners.
b.
Be divided into paragraphs, each of which as, as
nearly as may be shall be confined to a distinct portion of the subject, and every
paragraph shall be numbered consecutively.
c.
Conclude with a statement setting out
particulars of the relief claimed, for instance, that some specified person
should be declared duly returned or elected, or that the election should be
declared void, as the case may be.
Rule 5 states
that:-Every petition under these rules shall comply with the provisions of the
first schedule and shall be in form A set out in the second schedule
SECOND SCHEDULEFORM A Rule 5)
In the Supreme Court of Kenya at Nairobi
Petition No. Of 20
Between
…………………………………………………
Petitioner
And
……………………………………………………….Respondent
………………………….. PETITION
The humble
petition of AB is as follows …………………….. (set out, in consecutive paragraphs the
specific issues contended by (each of the)
petitioners) referring where necessary to section of the Constitution or by any
Act of Parliament or decided cases relied upon.)
2. (Briefly set out the point of law
raised)
3. (Briefly set out the facts necessary to
enable the Court to properly decide the point of law raised)
4. (Set out in summary of the grounds for
the petition)
5. (Set out the arguments supporting each
ground of the petition)
6. The question or issue for determination
by the Court is …………….. (State the question)
7. The relief sought by the petitioner is
…………………………..
Dated this day of
……………………………………..20…………
Signed
Petitioner ……………………………………………………………………….
……………………………………………………………………………………………….Advocate
for petitioner
To:
The Supreme Court of Kenya
Copies to be served on …………………………………….
Lodged in the Registry at …………………………….. On the …………………… day of
Registrar
Rule 9 respecting Response to the
petition require that:-
1.
The respondent shall file the response to the
petition within twenty fours of service of the petition under Rule 7
2.
The response under sub –rule(1) shall
a.
Be inform of an answer to the petition in the
manner specified in FORM B set out in the second schedule; and
b.
May be accompanied by a replying affidavit
FORM B(R.9 and 15 (1) (a)Heading as in the PetitionRESPONSE TO PETITION
In response to the petition, the respondents state that (state the facts
and grounds on which petitioners rely).
Wherefore your respondents pray that it be determined that the x was duly elected and the election
and the election were valid (or as the case may be)
Dated ……………………………………………….20……………………… (Signed) A
Dated………………………………………………..20……………………. (Signed) B
Rule 10(1) and (2) REQUIRES THAT:-10(1) THE Registrar shall notify all
the parties of the date and time of the conference in Form C set out in the
second schedule.
FORM CRule 10 and 16)(Heading as in the Petition)NOTICE BY REGISTRAR OF PRE- TRIAL CONFERERNCE
TAKE NOTICE that the date of the pre-trial conference has been fixed on
this ………………. Day of ……………………….. 20……………………
Signed………………………………………………..
Registrar
Rule 15 (2)(a) states that:- where the respondent does not
intend to oppose the petition the respondent shall-
2 (a) file notice of intention not to oppose the petition
within three days of service of the petition in form D set out in the second
schedule;
(b) Cause a copy of
the notice to be served on the petitioner
FORM D(Rule 15(2) (a)(Heading as in the petition)NOTICE OF INTENTION TO OPPOSE THE PETITION
TAKE NOTICE that the respondent in this petition intends to
oppose the petition
Dated this …………………… day of ………………………….. 20…………………
Signed……………………………………………..
Respondent
Advocate for the respondent
TO:
The Registrar/ Deputy
registrar of the Supreme Court of Kenya
Copies to be served on
lodged
In the registry/sub-registry at …………………………………………………….of ………………………..
20………………………
Registrar
Rule 21 respecting Notification of filing of petition, the
Registrar shall within three days cause to be published in the Gazette and in a
newspaper with a national circulation a notification of filing a petition in
FORM E set out in the First Schedule.
FORM E(Rule 21)
TAKE NOTICE that a petition has been filed
by…………………………………………………………………
Against the following respondents
…………………………………………………………………………………………………
Dated this ………………………………….. Day of ………………………………………………..20…………
Signed
Registrar
FORM F(Rule 26)(Heading as in the petition)NOTICE OF MOTION
TAKE NOTICE that on ……………………………..the ……………………………day
of…………………………………, 20……………
At……………………………………………….o’clock in the morning (1) afternoon as
soon thereafter as he can be heard, Mr………………………………….. Advocate for the above
–named applicant, will move the Court (1) a judge of the Court for an Order
that that ………………………………………..
And for an order that the costs of and incidental to this
application abide the result of the said appeal (2) ………………………………….
The application will be supported by the affidavit of sworn
on the ……………………….. day of ……………………20…………
The address for service of the applicant is
………………………………………dated this…………………day of………………………20……………………………
Registrar
THIRD SCHEDULE
FEES
1.
Upon lodging a petition
500,000
2.
Upon lodging a notice of motion 1,500
3.
Upon lodging a notice under certificate of
urgency 2,750
4.
Upon lodging
an affidavit, other than affidavit annexed to a notice of motion 1,150
5.
Upon giving notice under rule 14(Notice of Intention
Not To Oppose) 4,000
6.
Filing notice of objection or address of service
1,100
7.
Filing annexure (portfolio)
8.
Filing written submissions
50
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- Mfalme
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