Automated Summary
Key Facts
Anastasia Wanjiru Mwangi filed an election petition on 2013-04-04 challenging the 2013-03-04 election for Woman Representative in Lamu County, where Shakila Abdalla Mohamed was declared the winner. The petition alleged the election was not free and fair due to bribery and irregularities. The respondents (Independent Electoral & Boundaries Commission and Mohamed) applied to strike out the petition, arguing the petitioner failed to deposit the required Kshs 500,000 security for costs under Section 78 of the Elections Act. The court ruled the petition was struck out for non-compliance with the security deposit requirement and awarded the costs of the petition and the strike-out application to the respondents. The petitioner argued that since she did not serve the respondents via personal service or newspaper advertisement (as required by law), they should not be entitled to costs. However, the court held that the respondents were justified in acting upon the petition's publication in the Kenya Gazette (2013-05-19) and subsequent legal steps, including filing affidavits and attending court proceedings. The ruling was delivered on 2013-06-18.
Issues
- The first issue addressed was whether the entire costs of the election petition, including those incurred by the respondents for attending court proceedings and preparing evidence, should be borne by the petitioner due to her failure to deposit the mandatory security for costs as required by Section 78 of the Elections Act. The court examined whether the respondents were entitled to costs despite not being formally served with the petition and the petitioner's subsequent decision not to proceed with the petition.
- The second issue was whether costs should be awarded to the respondents when they instructed their advocates to act on the petition and incurred expenses before being formally served. The court considered whether the respondents' proactive engagement, such as obtaining a copy of the petition from the court registry and preparing evidence, justified their entitlement to costs under the principle that 'costs follow the event,' despite the petitioner's failure to serve them according to the prescribed legal procedures.
Holdings
- The court held that the petitioner's informal communication about not proceeding with the petition did not absolve her from bearing the costs incurred by the respondents. Despite the petitioner's argument that costs should only be paid to served parties, the judge determined that the respondents' actions (e.g., instructing advocates, attending court, preparing evidence) were justified given the public importance of the election petition and the gazette notice.
- The petition was struck out for non-compliance with Section 78 of the Elections Act (2011) and Rule 14 of the Rules, as the petitioner failed to deposit the mandatory security for costs. The court ruled that the respondents are entitled to the costs of the petition and the applications, given the petitioner's failure to serve the respondents properly and the legal principle that costs follow the event.
Remedies
- The petition was struck out for non-compliance with Section 78 of the Elections Act (2011) and Rule 14 of the Rules. The court ruled that the petitioner failed to deposit the mandatory security for costs (Kshs.500,000/=) within the prescribed ten-day period and did not serve the respondents in accordance with the law. As a result, the court dismissed the petition and found no further proceedings could be entertained under the Act's sui generis framework for election disputes.
- The court awarded the costs of the petition and the applications for striking out to the respondents. The petitioner was ordered to bear all costs incurred by both the Independent Electoral & Boundaries Commission and Shakila Abdalla Mohamed, including legal representation, witness preparation, and court appearances, despite the respondents not being formally served with the petition. The ruling emphasized that costs follow the event and the petitioner's obligations under the Act's sui generis election dispute procedures.
Legal Principles
The court determined that the petitioner's failure to deposit the mandatory security for costs under Section 78 of the Elections Act (2011) and Rule 14 of the Rules rendered the petition non-compliant. Consequently, the petition was struck out, and the court applied the doctrine of 'costs follow the event,' awarding the costs of the petition and applications to the respondents. This aligns with Section 84 of the Act, which mandates that costs in election petitions follow the cause, and Rule 34, which addresses cost payments in cases of abatement or non-compliance.
Precedent Name
- Raila Odinga & 2 Others v IEBC and others
- Bungoma Election Petition No. 7 of 2013
Cited Statute
- Elections Act (2011)
- Elections Act (2011) Rules
Judge Name
F. MUCHEMI
Passage Text
- Since the respondents have incurred considerable expense and time in preparing the responses to the petition and collecting evidence, I am persuaded that they are entitled to costs. I therefore order that costs of this petition shall be born by the petitioner.
- I come to the conclusion that the petition should be and is hereby struck out for non-compliance with Section 78 of the Act and Rule 14 of the Rules. The costs of the petition and of this application shall be born by the petitioner. I award the two respondents the costs in the petition.
- The respondents could not ignore the publication which brought it to their notice that there was an election petition against them. An election petition is a matter of great public importance... The argument that the 2nd respondent served herself and is therefore not entitled cannot be sustained.