Forum of filing
The validity of an election petition of a county governor is determined by a High Court established within the county or one nearest to the county. For instance, if Busia County has no court of high court status, parties can file their election petitions in Kakamega or Kisumu. The validity of the election of a member of a county assembly shall be heard by the resident Magistrates Court designated by the Chief Justice.
Duration for determining petitions
The issues in both Petition for Governor and MCA shall be heard and determined within six months of the date of lodging the petition.
What are some of the reliefs a party may seek from the court?
Election Court have power to grant the following:
(a) a declaration of whether or not the candidate whose election is questioned was validly elected
(b) a declaration of which candidate was validly elected; or
(c) an order as to whether a fresh election will be held or not.
Appeals
A party aggrieved by the decision of the Magistrate’s court shall appeal to the High Court. The appeal shall be on matter of law only and should be filed within 30 days of the decision of the Magistrates court. The appeal shall be heard and determined within six months from the date of filing of the appeal.
Security for Costs
As a petitioner, you are required to deposit security for payment of costs that may become payable by the Petitioner. This payment is done not more than ten days from the date of presentation of the Petition.
If challenging a presidential petition, you deposit Kenya Shillings One Million.
For the County Governor position as well as members of Parliament, the Petitioner must deposit Kenya Shillings Five Hundred Thousand Shillings,
Kenya Shillings One Hundred Thousand is deposited as security for costs in case of petition against a member of the County Assembly.
What happens if a petitioner fails to deposit security for costs?
Where a petitioner does not deposit security there will be no further proceeding 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.
What is the procedure in an election court?
Upon receipt of a petition the election court peruses the petition and should it find that no sufficient ground exists for granting the relief claimed is disclosed, it may reject the petition summarily or (b) fix a date for the trial of the Petition.
What powers do the election court have?
An election court has the power to:
- summon and swear in witnesses as well as impose penalties on witnesses for giving false evidence
- compel the attendance of any person as a witness who appears to have been involved in the circumstances of the election;
- examine persons compelled to attend or persons called as a witness in court,
- decide all matters that come before it without undue regard to
If a person refuses to attend court what are the remedies?
Persons who refuse to obey an order to attend court commit an offense of contempt of court. contempt of court application.
Interim matters
Where there are interlocutory matters relating to the Petition that need interim address these can be addressed by the election court.
Can the court order the Commission to issue a certificate to an MCA or Governor?
Yes, this can be done if:
(a) upon recount of the ballots cast, the winner is apparent; and
(b) that winner is found not to have committed an election offense.
Once the court directs the Commission to issue such a candidate a certificate, the commission has a duty to notify the relevant Speaker of the decision of the election court.
Prohibition of disclosure of vote
A voter who has voted at an election shall not, in the proceedings of an election petition, be required to state whom they voted for.