PETITIONS

Question 1

WHAT IS A PETITION?

Answer 1

• A petition is a formal application made to the court in writing that requests action on a certain matter
• It is distinguished from a plaint or statement of claim which seeks an order for damages and/or specific performance from
  the opposing party
• The person starting the action is called the petitioner, and the person defending the action is called the respondent
• If a proceeding is started with a petition, there is no trial with witnesses – instead, the matter is heard by a judge and the
  evidence is presented by affidavits only

Question 2

WHAT SHOULD A PETITION DISCLOSE?

Answer 2

The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (‘Mutunga
Rules’) provide that a petition must disclose the following:
(i) The petitioner’s name and address;
(ii) The facts relied upon;
(iii) The legal provisions relied upon;
(iv) The nature of injury caused or likely to be caused to the petitioner, or the person in whose name the petitioner
has instituted the suit;
(v) Details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related
to the matters in issue in the petition;
(vi) The petition shall be signed by the petitioner or the advocate of the petitioner; and
(vii) The relief sought by the petitioner

Question 3

WHAT DO THE MUTANGA RULES STATE?

Answer 3

MUTUNGA RULE WHAT IT STATES
Rule 11(1) A petition may be accompanied by a supporting affidavit
Rule 11(2) Where the applicant intends to rely on documents, the documents shall be annexed to the supporting affidavit, or the petition where there is no such affidavit
Rule 14 The petition and annexures shall be served 15 days from the date of filing, with the proof of service being the Affidavit of Service
Rule 12(2) The Attorney General, or other state organ concerned, shall reply within 14 days by way of a Replying Affidavit, and of any document is relied upon it shall be annexed to the Replying Affidavit
Rule 15(2)(a) Any other respondent (other than the government) will, within 7 days, file a Memorandum of Appearance and either a:
(i) Replying Affidavit; or
(ii) Statement setting out the grounds to be relied upon to oppose the petition
Rule 15(2)(b) After filing any of the above documents, the petitioner may, within 14 days file a Replying Affidavit or providing any other document as a response to reply to the petition

Question 4

WHAT SHOULD AN ELECTION PETITION CONTAIN?

Answer 4

The Election (Parliamentary and County) Petition Rules 2017 provide that an election petition shall contain:
(i) The name and address of the petitioner;
(ii) The date when the election in dispute was conducted;
(iii) The results of the election, if any, and however declared;
(iv) The date of the declaration of the results of the election;
(v) The grounds on which the petition is presented; and
(vi) The name and address of the advocate, if any, for the petitioner, which shall be the address for service