What you should know about filing an election petition

The much awaited elections take place on Tuesday. One feature that we expect to witness after the polls is a number of petitions.

In 2013, for instance, there were several election petitions by various contenders. Law firms which handle the petitions will soon become very busy.

The Law Society of Kenya has held numerous trainings for lawyers on how to conduct election petitions in preparation for fallouts arising from the upcoming elections. I will highlight rules on conducting an election petition in this article.

Before filing a petition, it is important to determine the court in which it should be filed.

There are various courts designated to handle election petitions.

Issues of jurisdiction in such petitions are very important as getting it wrong can cause a petitioner to lose a case on technicalities. For example, an election petition was struck out because it was filed in the wrong court.

Petitions on county assembly matters should be filed in the Resident Magistrate’s Court, while those relating to parliamentary and governors’ seats should be filed in the High Court. Such petitions should be filed in the county court. For example, an election petitioner from Kisii county should file his complaints at Kisii courts.

Petitions should be written in a specific format and the Independent Electoral and Boundaries Commission is a respondent in every petition filed.

The IEBC is supposed to appear as a defendant in every petition. The petition should state the grounds upon which it is brought before court.

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The type of orders that may be sought from the court include a declaration as to whether the candidate was properly elected, a declaration of which candidate was properly elected, and an order as to whether fresh elections should be held.

When it comes to the issue of recounting votes, such an application is made independent of the petition as the court can order a recount.

Respondents are expected to reply to the petition within 14 days of being served. Presidential petitions are however handled by the Supreme Court and the orders differ slightly from the other petitions.

The decision of the Supreme Court on a presidential election is final and binding.

In 2013, for instance, there were a number of election petitions some of which have been reported by the Kenya Law Reports and make for interesting reading.

It is worth noting that the Chief Justice gazetted new election rules on June 16, 2017.