Why Missing an Election Petition’s Security Deposit Is Fatal

If you’re planning to challenge an election result in Kenya, there’s a strict financial requirement that has to be met almost immediately after filing, and getting it wrong doesn’t just weaken your case. It ends it. A recent High Court decision spells out exactly how unforgiving this requirement is.

The Rule

Section 78 of the Elections Act requires a petitioner challenging an election to deposit security for costs with the court. For a petition against the election of a Member of Parliament, that amount is Kshs 500,000. Under Section 78(3), the deposit must be paid within ten days after the petition is presented to the court. If it isn’t paid (and the failure isn’t remedied) the law is direct: no further proceedings can be heard on the petition, and the respondent may apply to have it dismissed, with costs.

The Case, Briefly

In Julieta Karigi Kithumbu & Anor v Leo Wa Muthende Njeru & 3 Others (High Court at Embu, Election Court, Petition No. E001 of 2025), the petitioners challenged the outcome of the Mbeere North Constituency parliamentary by-election. It was undisputed that they had not paid the Kshs 500,000 security deposit within the required ten-day window.

C.B. Mwongela & Co. Advocates, acting for the Independent Electoral and Boundaries Commission and the returning officer, applied to strike out the petition on this ground. A second application, raising broader jurisdictional arguments, was filed separately by other respondents. The Court found it unnecessary to even consider those wider jurisdictional questions, the missing security deposit was, on its own, a complete and sufficient basis to dispose of the case. The petition was dismissed, with costs to the respondents capped at Kshs 800,000.

Why There’s No Fixing It After the Fact

The Court was unambiguous that the security deposit requirement is mandatory and non-derogable, meaning it isn’t a procedural formality that a judge has discretion to excuse, waive, or extend after the fact, however compelling the petitioner’s underlying grievance might be. Once the ten-day window passes without payment, and the default isn’t remedied, the statute leaves the court with only one path: strike out or dismiss the petition.

This is a meaningfully different posture than many other procedural defects in litigation, where courts often retain discretion to grant extensions, excuse minor non-compliance, or allow a party to cure a defect. Section 78 was drafted, and has consistently been interpreted, to leave no such room.

Practical Guidance for Prospective Petitioners

For anyone considering challenging an election result (a candidate, an agent, or a civil society organisation) the lesson from this case is not subtle:

Treat the ten-day deposit deadline as immovable from the moment you decide to petition, not as something to arrange once the petition itself is filed and other matters have settled.

Confirm the exact deposit amount for the specific office being challenged, the sum varies depending on whether the election in question is presidential, parliamentary, or for a county position.

Arrange the funds before filing, or have a concrete, executable plan to pay within the ten-day window, this is not a step that can be deferred or handled loosely.

Do not assume any circumstance will justify an extension. As this case shows, courts have treated the requirement as leaving no discretion to excuse non-compliance, regardless of the reason for the delay.

A well-founded election petition, backed by strong evidence, can still fail entirely if this single administrative step is missed. Anyone contemplating a challenge should treat the security deposit not as a secondary detail, but as the first and most urgent item on the checklist.

C.B. Mwongela & Co. Advocates advises electoral bodies, candidates, and other parties on compliance with the statutory requirements governing election petitions.