Supreme Court Presidential Election Petition Rules - as Plain Text by MWakili

44 Kenya Subsidiary Legislation, 2013 the provisions of section 55 (2) of the Traffic Act with effect from the 11th January, 2013.

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AMOS KIMUNYA, Minister for Transport.

LEGAL NOTICE NO.

14 THE CONSTITUTION OF KENYA THE SUPREME COURT ACT (No.

7 of 2011) THE SUPREME COURT RULES (No.

155 of 2012) COMMENCEMENT IN EXERCISE of the powers conferred by rule 1 of the Supreme Court Rules, 2012, the Chief Justice appoints the 1st February, 2013, as the date on which the Spreme Court Rules shall come into operation Dated the 28th January, 2013.

WILLY MUTUNGA, Chief Justice.

LEGAL NOTICE NO.

15 THE CONSTITUTION OF KENYA THE SUPREME COURT ACT (No.

7 of 2011) THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES, 2013 ARRANGEMENT OF RULES Rule 1Citation.

2Interpretation.

Kenya Subsidiary Legislation, 2013 45 3Object and purpose of the Rules.

4Scope of the Rules.

5Petition generally.

6Filing of petition.

7Service of petition.

8Response to petition.

9Pre-trial conference.

10Issues for determination during a post-polling conference.

11Hearing of petition.

12Grounds of petition.

13Constitution of the Court.

14Security for costs.

15Notice to the Commission.

16Notification of filing of petition.

17Substitution of petitioner.

18Joinder of respondent.

19Withdrawal of the petition and substitution of a petitioner.

20Hearing to proceed uninterrupted.

21Abatement.

22Orders of the Court.

23Determination of a petition.

24Fees and costs.

25Practice directions.

26Extension of time.

27Review of Rules.

FIRST SCHEDULEPROVISIONS RELATING TO PETITIONS AND AFFIDAVITS SECOND SCHEDULEFORMS THIRD SCHEDULEFEES 45 46 Kenya Subsidiary Legislation, 2013 THE CONSTITUTION OF KENYA THE SUPREME COURT ACT (No.

7 of 2011) IN EXERCISE of the powers conferred by Article 163(8) of the Constitution and section 31 of the Supreme Court Act, the Supreme Court makes the following Rules: THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES, 2013 1.

These Rules may be cited as the Supreme Court (Presidential Citation.

Election Petition) Rules, 2013.

2.

In these Rules, unless the context otherwise requires Interpretation.

Act means the Supreme Court Act; No.7 of 2011.

Commission means the Independent Electoral and Boundaries Commission established under Article 88 of the Constitution; Court means the Supreme Court; Election means an election for the purposes of electing the President pursuant to the procedure stipulated by the Constitution and No.24 of 2011.

the Elections Act; Judge means a Judge of the Court; nomination has the meaning assigned to it under the Elections Act; No.24 of 2011.

petition means petition filed in Court in relation to presidential elections pursuant to Article 136, 137, 138, 139 and 140 of the Constitution; petitioner means a person filing a petition and includes a cross-petitioner; practice directions means practice directions issued by the Chief Justice under Rule 25; Registrar means the Registrar of the Court and includes a Deputy Registrar; respondent means the President-elect and includes the Deputy President-elect, the Commission and any other person named in the petition as a respondent.

3.

The object and purpose of these Rules is to enable the Court to Object and purpose exercise its exclusive original jurisdiction under Article 163(3)(a) of of the Rules.

the Constitution.

4.

These Rules apply to a petition filed in relation to election to Scope of the Rules.

the office of President and includes a petition arising (a) upon the declaration by the Commission of the President elect; (b) pursuant to Article 138 (1), (2), (3), (4), (5),(6) and (10) and Article 140 of the Constitution; Kenya Subsidiary Legislation, 2013 47 (c) pursuant to section 39 of the Elections Act; and No.

24 of 2011.

(d) in an election other than a general election.

5.

A petition under these Rules shall conform to the provisions of Petition generally.

the First Schedule and shall be in Form A set out in the Second Schedule.

6.

A petition challenging the election of the President -elect shall Filing of petition.

be filed in Court within seven days after the date of the declaration of the results of the presidential election.

7.

(1) The petitioner shall serve the petition on the respondent Service of petition.

within three days of filing (a) direct on the respondent; or (b) by advertisement in a newspaper with national circulation.

(2) Subject to sub-rule (1), the petitioner shall, within two hours of filing the petition, serve the respondent with the petition by electronic means.

8.

(1) Upon service of a petition under Rule 7, a respondent who Response to petition.

wishes to oppose the petition may within three days of service of the petition file a response which shall (a) be in form 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.

(2)Where the respondent does not intend to oppose the petition the respondent shall (a) file a notice of intention not to oppose the petition within three days of service of the petition in Form C set out in the Second Schedule; and (b) cause a copy of the notice to be served upon the petitioner.

(3) Subject to the Courts direction, a respondent who has given notice of intention not to oppose a petition under sub-rule (2) shall not be allowed to appear or act as a party against the petition in any subsequent proceedings.

9.

(1) There shall be a pre-trial conference nine days after the Pre-trial conference.

filing of the petition.

(2) The Registrar shall notify all the parties to the petition of the date and time of the conference in Form D set out in the Second Schedule.

10.

(1) The Court shall, at the pre-trial conference Issues for determination during (a) frame contested and uncontested issues in the petition; pre-trial conference.

(b) consider consolidation of petitions in cases where more than one petition is filed; (c) give directions or orders in relation to any interlocutory matters; 47 48 Kenya Subsidiary Legislation, 2013 (d) give any suitable directions for the expeditious disposal of the petition or any outstanding issues; (e) give directions specifying the place and time of the hearing of the petition ; (f) give directions in regard to the filing and service of any further affidavits or the giving of additional evidence; (g) give directions in regard to the joinder, substitution, addition or striking out of any party to the petition; (h) specify the volume or number of pages of any copies of additional documents that may be required to be filed; (i) notify the Commission to furnish it with all the relevant election documents relating to the petition before commencement of the hearing; or (j) make such other orders as may be necessary to ensure a fair determination of the petition.

(2) The Court shall give directions as to the manner in which evidence shall be taken.

11.

The Court shall, within two days of the pre-trial conference, Hearing of petition.

commence the hearing of the petition.

12.

(1) A person may file a petition challenging Grounds for petition.

(a) the validity of the election of the President- elect; or (b) a declaration by the Commission under Article 138(5).

(2) The grounds upon which a petition under sub-rule (1) may be filed include (a) the validity of the conduct of a presidential election; (b) the validity of the qualification of a President-elect; (c) the commission of an election offence as provided under No.24 of 2011.

Part VI of the Elections Act; (d) the validity of the nomination of a presidential candidate; or (e) any other ground that the Court deems sufficient, provided such ground shall not be frivolous, vexatious or scandalous.

13.

The Court shall be properly constituted for purposes of Constitution of the hearing and determining a petition filed pursuant to these Rules, if it is Court.

composed of not less than five Judges.

14.

(1) The petitioner shall, upon filing a petition deposit a sum Security for costs.

of one million shillings as security for costs.

(2) If no security is given, the Court may, on its own motion or on an application by the respondent, issue an order directing the dismissal of the petition and for payment of the respondents costs.

Kenya Subsidiary Legislation, 2013 49 15.

(1) The Registrar shall, within three days of the filing of a Notice to the petition, notify the Commission of the petition.

Commission.

(2) The Commission shall deposit with the Registrar copies of Form 36 of the Election (General) Regulations, 2012 in respect of the presidential election from each County.

L.N .128 of 2012.

16.

The Registrar shall within three days of the filing of a petition Notification of filing cause to be published in the Gazette and in a newspaper with national of a petition.

circulation a notification of filing a petition in Form E set out in the First Schedule.

17.

(1) The petitioner may apply to the Court to substitute a co- Substitution of petitioner or strike out any of the petitioners.

petitioner.

(2) Any person who was entitled to be a petitioner in the petition may apply and be joined as a co-petitioner at any time before the conclusion of the hearing of the petition.

(3) An application under sub-rule (1) and (2) shall be by notice of motion in Form F set out in the Second Schedule and shall be supported by an affidavit.

18.

(1) Any person entitled to be joined as a respondent may Joinder of apply to be joined as a respondent to the petition.

respondent.

(2) An application under sub-rule (1) shall be by notice of motion in Form F set out in the Second Schedule and supported by an affidavit.

(3) The petition shall be heard and determined, whether or not any person, subsequent to the filing of the petition applies to be joined as a respondent.

19.

(1) A petitioner may, with leave of the Court, withdraw the Withdrawal of the petition at any stage of the proceedings.

petition and substitution of a (2) An application under sub-rule (1) shall be by notice of motion petitioner.

in Form F set out in the Second Schedule and shall be supported by an affidavit.

(3) The Court may, upon application for withdrawal of a petition under sub-rule (1), grant leave on such terms as it may deem fit and just.

(4) At the hearing of the application under sub-rule (1), any person who may have been entitled to be a petitioner may with leave of Court be substituted as petitioner.

(5) The Registrar shall, within three days of the substitution of a petitioner, cause a notice of the substitution to be published in at least one newspaper of national circulation.

20.

Save in exceptional circumstances as may be determined by Hearing to proceed the Court, the hearing of a petition once commenced shall proceed uninterrupted.

uninterrupted on a day to day basis until its conclusion.

21.

(1) A petition shall not abate on the sole ground that a Abatement.

petitioner or a respondent has died in the course of the proceedings.

49 50 Kenya Subsidiary Legislation, 2013 (2) Subject to sub-rule (1), the Court may make any order as it may deem fit and just in the circumstances.

22.

(1) At the conclusion of the hearing of an election petition, the Court may make an order Orders of the Court.

(a) dismissing the petition; (b) declaring the election of the President-elect to be- (i) valid; or (ii) invalid.

(c) invalidating the declaration made by the Commission under Article 138(5) of the Constitution; (d) on payment of costs; (e) as it may deem fit and just in the circumstances.

(2) At the time of making an order under sub-rule (1), the Court may make an order specifying the total amount of costs payable and specifying the persons by and to whom costs shall be paid.

23.

(1) The Court shall, at the close of a hearing, give its decision Determination of a but may reserve its reasons for the decision to a later date.

petition.

(2) If the Court reserves reasons for its decision under sub-rule (1), the Court shall give a summary of the decison and the period within which it shall give reasons.

(3) The decision of the Court shall be final.

24.

(1) The filing fees for petitions and other documents filed Fees and costs.

under these Rules shall be as set out in the Third Schedule.

(2) The Registrar shall be a taxing officer with power to tax the costs arising out of the proceedings under these Rules as between the parties.

(3) The costs taxed by the registrar under sub-rule (1) shall be certified by the Court.

25.

(1) The Chief Justice may issue practice directions for the Practice directions.

better carrying out of the provisions of these Rules.

(2) Where these Rules do not provide for the exercising of a right or for a procedure, the Court may adopt any procedure that is not inconsistent with the Constitution, the Act, these Rules or practice directions.

26.

Subject to the Constitution, the Court may extend the time for Extension of time.

doing anything required to be done under these Rules.

27.

The Court may review these Rules from time to time.

Review of Rules.

Kenya Subsidiary Legislation, 2013 51 FIRST SCHEDULE (r.5) PROVISIONS RELATING TO PETITIONS AND AFFIDAVITS 1.

A petition is considered filed upon (a) payment of the prescribed court fee; (b) depositing the security for costs; and (c) stamping by the registrar.

2.

A petition may be filed by several persons who may be joined as co-petitioners.

3.

A petition shall be signed by the petitioner or all the petitioners if they are more than one, or by the duly authorized advocate.

1.

A 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.

2.

A petition shall briefly set out the facts and grounds relied on to sustain the relief claimed.

3.

A petitioner shall lodge, together with the petition, at least eight copies of the petition and all documents which accompany it.

7.

An Affidavit in support of the petition shall be sworn 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 the facts relied on by the petitioner or petitioners; (b) be divided into paragraphs, each of which, 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 sought.

51 52 Kenya Subsidiary Legislation, 2013 SECOND SCHEDULE (r.5) FORM A 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) petitioner(s) referring where necessary to the section of the Constitution or 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 of the grounds of the petition) 6.

The question or issue for the 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 the petitioner To: The Supreme Court of Kenya Copies to be served on.

.

Lodged in the Registry at.on the.day of.

.

Registrar Kenya Subsidiary Legislation, 2013 53 FORM B (r.8 (1) (a)) In the Supreme Court of Kenya at Nairobi Petition No.

.

.

.of 20.

Between.

Petitioner and.

Respondent.

RESPONSE TO PETITION In response to the petition, the respondents state that.

(state the facts and grounds on which the petitioners rely).

Wherefore your respondents pray that it be determined that the said.

was duly elected and the election was valid or invalid.

Dated , 20.

(Signed) A.

Dated , 20.

(Signed) B FORM C (r.8 (2) (a)) In the Supreme Court of Kenya at Nairobi Petition No.

.

.

.of 20.

Between.

Petitioner and.

Respondent.

NOTICE OF INTENTION NOT 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 53 54 Kenya Subsidiary Legislation, 2013 FORM D (r.9 (2)) In the Supreme Court of Kenya at Nairobi Petition No.

.

.

.of 20.

Between.

Petitioner and.

Respondent.

NOTICE BY REGISTRAR OF PRE-TRIAL CONFERENCE TAKE NOTICE that the date of the pre-trial conference has been fixed on this .day of ., 20.

Signed.

Registrar FORM E (r.16) In the Supreme Court of Kenya at Nairobi Petition No.

.

.

.of 20.

Between.

Petitioner and.

Respondent.

NOTICE OF FILING OF PETITION TAKE NOTICE that a petition has been filed by.

against the following respondents.

Dated this .day of ., 20.

Signed.

Registrar Kenya Subsidiary Legislation, 2013 55 FORM F (r.17 (3), 18 (2) and 19 (2)) In the Supreme Court of Kenya at Nairobi Petition No.

.

.

.of 20.

Between.

Petitioner and.

Respondent.

NOTICE OF MOTION TAKE NOTICE that on.

the .day of ., 20 ., at.

oclock in the morning / afternoon or as soon thereafter as he can be heard,.

.

, Advocate for the above-named applicant, will move the Court a judge of the Court for an order that.

on the grounds that.

And for an order that the costs of and incidental to this application abide the result of the said appeal.

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.

Signed.

Applicant.

Advocate for the applicant Lodged in the Registry on the .day of ., 20.

.

Registrar 55 56 Kenya Subsidiary Legislation, 2013 THIRD SCHEDULE (r.24 (1) FEES Fees Upon lodging a petition 500,000 Upon filing a response to the petition 20,000 Upon lodging a notice of motion 1,500 Upon lodging a notice of motion under certificate of 2,750 Upon lodging an affidavit, other than an affidavit 1,150 annexed to a notice of motion Upon filing notice of intention not to oppose the 4,000 petition Filing annexures ( per folio) 50 Filing written submissions (per folio 50 WILLY MUTUNGA, Chief Justice/President of the Supreme Court.

LEGAL NOTICE NO.

16 THE TRANSITION TO DEVOLVED GOVERNMENT ACT (No.

1 of 2012) TRANSFERRED FUNCTIONS IN EXERCISE of the powers conferred by section 23(1) of the Transition to Devolved Government Act, 2012, the Transition Authority identifies functions listed in the Schedule to be functions that may be transferred to county governments immediately after the first elections under the Constitution: Provided that: (a) these functions are in addition to the executive, legislative and financial functions provided through the establishment of the County Executive and County Assembly; and (b) the functions provided for under paragraph 2(a) of the Schedule are limited to health services being provided by the relevant municipalities of the specified counties in the said paragraph.

SCHEDULE 1.

Agriculture: (a) livestock sale yards; (b) county abattoirs/slaughter house services.

.