How courts planned to handle poll petitions in record time

By Isaiah Lucheli

Nairobi, Kenya: Anticipation of high number of petitions arising from disputes in county and parliamentary elections by the Judiciary led to the formation of the Judiciary Working Committee on Elections Preparations and amendment of Elections Act.

The committee’s chief executive Lilian Arika said it had recommended the Act be amended to devolve jurisdiction to magistrates courts to hear disputes relating to election of Members of the County Assembly.

The committee also drafted proposed amendments to the Act to provide for appeals and time limits for hearing and determination of appeals from the decision of the Magistrates’ Court and the High Court.

Arika, who is also a Senior Principal Magistrate, added that the committee proposed time limit for hearing and determination of appeals be set at six months and the scope of the appeals from the Magistrates’ Court to the High Court limited to matters of law.

“In view of the ambiguity of the power to make rules of procedure and practice, the committee proposed the Rules Committee established under the Civil Procedure Act be empowered to make rules regarding election petitions,” the proposed amendment report read in part.

The amendments were tabled in Parliament by Attorney General Githu Muigai and passed on December 24 last year in the Statute Law (Miscellaneous Amendments) (No. 2) Act, 2012. The amendment Act was assented to on December 31.

Referendum petitions

The committee also proposed an amendment to Section 96 of the Elections Act to empower the Rules Committee to make rules of procedure governing the conduct of election petitions alongside a similar power given to it in relation to referendum petitions.

“Public participation is one of the National Values and Principles of Governance recognised by the Constitution and the committee, in anticipation of the amendments to the Act, began engaging actively with stakeholders with a view to developing rules to replace the framework that existed under the National Assembly and Presidential Elections Act (Chapter 7 of the Laws of Kenya), that is the National Assembly and Presidential Election Rules, 1993,” the report stated.

According to the committee, the rules were found wanting as they were not in line with Constitution and Elections Act, 2011. The consensus among stakeholders was the former regime of rules focused on procedural technicalities at the expense of substantive justice.