Filing an election petition in Kenya is a highly regulated legal process designed to ensure that disputes arising from elections are resolved fairly and within strict timelines.
Governed by the Elections Act, 2011, and the Elections (Parliamentary and County) Petition Rules, 2017, the process outlines the rights and responsibilities of both petitioners and respondents.
Drafting the Petition
The process begins with preparing a formal petition in the prescribed format (Form EP 1). The document must include:
- The petitioner’s name and address.
- The election in dispute, including the date it was held.
- The declared results and date of declaration.
- Specific grounds for challenging the results.
The relief sought, which could range from declaring the election invalid to ordering a fresh poll
The petition must be signed by the petitioner and accompanied by supporting affidavits and copies for the court and all respondents.
Filing Affidavits
The petitioner must file a sworn affidavit that outlines the facts and grounds relied upon. Each intended witness must file an affidavit at the time of lodging the petition.
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These affidavits form part of the evidence to be used in court.
Naming Respondents
The Independent Electoral and Boundaries Commission (IEBC) must be named as a respondent in every petition. Other respondents include the declared winner and any individuals accused of electoral malpractice
Security for Costs
Within ten days of filing, the petitioner must deposit security for costs with the Registrar. This money covers potential legal costs if the petition fails. Without this deposit, the petition may not proceed
Serving the Petition
The petitioner is required to serve the petition on the respondents within seven days of filing. Service can be done directly or through publication in a national newspaper. The IEBC can be served at its headquarters, county, or constituency offices
Responding to the Petition
Respondents have up to 14 days to file a response in the prescribed format (Form EP 4). Their responses must directly address the petitioner’s claims and may include affidavits from witnesses. Respondents who fail to respond lose the right to oppose the petition in court
Pre-Trial Conference
Within seven days after the last response, the court convenes a pre-trial conference. This session clarifies contested issues, consolidates petitions where necessary, and sets timelines for hearings.
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The court may also give directions on witnesses, additional evidence, and storage of election materials
Hearing the Petition
Once hearings commence, they proceed on a day-to-day basis until they are concluded. The court may order a recount, scrutiny of ballots, or examination of tallying records if justified
Judgment and Costs
The court delivers a ruling that may validate the election, nullify it, or order a fresh poll. It may also award costs against either party. Costs are recovered from the security deposit lodged by the petitioner
Appeals
Decisions of magistrates’ courts can be appealed at the High Court within 14 days.
High Court decisions on parliamentary, senatorial, or gubernatorial petitions may be appealed to the Court of Appeal within six months of the decision.
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