[2017] KEHC 2486 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT NAIROBI

CORAM: R. MWONGO, PJ

ELECTION PETITIONS NOS. 13 & 16 OF 2017 (AS CONSOLIDATED)

IN THE MATTER OF ARTICLE 105 OF THE CONSTITUTION, 2010

AND

IN THE MATTER OF THE ELECTIONS ACT, 2011

AND IN THE MATTER OF THE SENATORIAL ELECTION FOR WAJIR COUNTY

BETWEEN

ABDIRAHMAN ADAN ABDIKADIR……….....……1ST PETITIONER

ADOW MOHAMED ABIKAR……...……………....2ND PETITIONER

VERSUS

INDEPENDENT ELECTORAL

& BOUNDARIES COMMISSION.………………1ST RESPONDENT

COUNTY RETURNING OFFICER…..…..……….2ND RESPONDENT

ABDULLAHI IBRAHIM ALI……………………..3RD RESPONDENT

RULING ON APPLICATION NO 4

The Application

1. This application dated 5th October, 2017, is by the 1st and 2nd respondents and seeks leave to file additional witness affidavits. It is supported by the affidavit of their counsel, Herman Omoti, and seeks the following orders:

“1. ...granted...

2. ...granted...

3. Leave be granted to the 1st and 2nd Respondents to file additional affidavits for the 1st Respondent’s Returning Officers and Presiding Officers for the Polling Stations whose results have been disputed in the Petition, particularly the following Constituencies:

a. Wajir South Constituency;

b. Wajir North Constituency;

c. Eldas Constituency; and

d. Tarbar Constituency”

2. The Motion is premised on the grounds that the additional Witness Affidavits form part of the evidence in the Response filed by the 1st and 2nd Respondents. As such, it is argued, the affidavits were to be filed together with the Response to the Petition in accordance with Rule 11 of the Election (parliamentary and County Petition) Rules(Election Petition Rules).

3. Explaining the delay, Counsel averred that the Witness Affidavits were prepared late on account of logistical challenges; that they answer to some of the issues raised in the Petition and are thus critical to the determination of this matter. He also stated that at the time of filing the Response to the petition on 29th September, 2017. , the 1st and 2nd Respondent’s had only managed to take statements from two Constituency Returning Officers. It is further stated that they are making arrangements to get the statements of the remaining four Constituency Returning Officers.

4. The 2nd Petitioner did not make any representations in this matter, opting to leave the matter to the court, and the 3rd Respondent does not oppose the application.

5. The 1st Petitioner opposes the application, hence the hearing and determination herein.

6. Mr.Omitisubmitted thatWajirCounty has six constituencies thus six Constituency Returning Officers. Counsel attributed the reasons for the delay in filing on the difficulty they have faced in trying to locate the Returning Officers given that the county is vast and has difficult terrain.

7. He urged that presiding officers work under the Returning Officers, who are necessary to give information at a level beyond the polling station. Counsel further urged that the law on filing affidavits out of time as contained under Rule 19 of the Elections Petitions Rules,provides that the court has discretion where for sufficient reasons to allow additional affidavits.

8. Counsel clarified that the affidavits do not introduce new evidence but simply respond to the critical issues raised in the Petition. Counsel concluded by urging the court to apply Article 159 of the Constitution and Rule 5 of the Elections Petition Rules, 2017, reject technicalities.In any event, counsel argued, the additional affidavits would lead to no prejudice.

9. Mr.Abdulhakim’sopposing submission isessentially founded on the argument that the additional affidavits will have the effect of changing the character of the response to the petition. He argues that: the 1st and 2nd Respondents have filed an additional 21 affidavits, 19 of them by the Presiding Officers and 3 by the Returning Officers; that they had indicated It was Counsel’s submission that the 1st and 2nd respondents had indicated that they were to file affidavits for Returning officers only. Any further affidavits, it was stated, would change the character of the 1st and 2nd Respondents’ response to the Petition.

10. Counsel urged that the Election Petition Rules clearly obligated the 1st Petitioner to file all affidavits in response to the petition at the time of filing their response. They however ignored the Rules and have gone ahead and filed affidavits not referred to in the Respondents’ replying affidavit. Counsel cited the Supreme Court decision in RailaAmoloOdinga& Another v Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR where that court held that affidavits of parties should not be filed as annexures but should be filed independently.

11. It was Counsel’ submission that the affidavits referred to are deposed by: Gedi R. Noor at page 8, Mahat Hassan at page 12, Nancy Mbutha at page 30, Aldijabar Q Abdi at page 36, Mohammed Ibrahim at page 46, Omar Mohammed at page 50, MahatAbdi at page 54, Ibrahim Yusuf at page 58, Mohamed Saman at page 63, AbdulahiAbdi at page 68, Hassan A Husein at page 72, AbdullahiAbdi at page 76, Mohamed Mude at page 79, Osman M. Ifiye at page 83, Ali Mude at page 88, Abdullahi Mohamed at page 91, Mohamed D. Mohamed at page 94, Mohamed M. Abey at page 98 and Mohamed Daud at page 102.

12. With regard to the affidavits by the Returning Officers, Counsel urged the court to dismiss the 1st and 2nd Respondents’ application.

Analysis and Determination

13. The only issue that arises for determination is whether leave should be granted to the applicant to file additional affidavits for the 1st Respondent’s Returning Officers and Presiding Officers for the Polling Stations whose results have been disputed in the Petition.

14. Section 80 of the Elections Act, 2011 provides for the powers of an election court as follows:

“an election court may, in the exercise of its jurisdiction decide all matters that come before it without undue regard to technicalities.”

And in the Elections (Parliamentary and County Elections) Petition Rules, 2017, the objective of the Rules is provided for under Rule 4,which states:

“(1).The objective of these Rues is to facilitate the just, expeditious, proportionate and affordable resolution of elections petitions.

(2).An election court shall, in the exercise of its powers under the Constitution and the Act, or in the interpretation of any of the provisions in these Rules, seek to give effect to the objective specified in sub-rule (1).”

15. In my view, overriding objectives of the Rules coupled with the provision of Article 159 of the Constitution suggest mandate a flexible approach to breach of the Rules particularly where the reason is not attributed to a party’s recalcitrance, neglect, or abuse of court process.

16. Thus, it is instructive that where there is non-compliance with the Rules, the court is expressly entitled to invoke Rule 5which provides:

“(1).The effect of any failure to comply with these Rules shall be determined at the Court’s discretion in accordance with the provisions of Article 159 (2) (d) of the Constitution

(2). A party to a petition or an advocate for the party shall assist an election court to further the objective of these Rules and, for that purpose, to participate in the processes of the election court and to comply with the directions and orders of the election court.”

17. The filing of affidavits is provided specifically for in Rule 12 of the Election Petition Rules, 2017. Rule 12 (5), (6) & (7)specifically demand that a party filing a response to a petition must file with his response the affidavits of witnesses intended to be called. The relevant provisions are as follows:

“(5).A response to the petition under rule 11 shall be supported by an affidavit sworn by the respondent.

(6) Each person who the respondent intends to call as a witness at the hearing, shall swear an affidavit.

(7)A respondent shall, at the time of filing the response to a petition, file the affidavits sworn under sub-rule (6).”

18. After the filing of the last response to the petition and in accordance with Rule 15 of the Election Petition Rules, 2017, an election court is required to schedule a pre-trial conference with the parties. One of the specific roles of the court during the pre-trial conference is specified under Rule 15 (1) (h) which provides:

“15. (1) Within seven days after the receipt of the last response to a petition, an election court shall schedule a pre-trial conference with the parties in which the election court shall—

(a) ….

(d) confirm the number of witnesses the parties intend to call;

(e) give an order, where necessary, for furnishing further particulars;

(f) ….

(h) give directions as to the filing and serving of any further affidavits orthe giving of additional evidence…”(emphasis supplied)

19. Clearly, the Rule emphasises the flexibility available to the Court when, at the pre-trial conference, party’s first meet to discuss the overall scope and process of their intended cases. The Court may inter alia, give directions as to the filing and serving of any further affidavits or the giving of additional evidence.

20. On this point, the Supreme Court in the case of RailaOdinga& 5 Others vs. Independent Electoral and Boundaries Commission and 3 Other [2013] e KLRheld:

‘The other issue the Court must consider when exercising its discretion to allow a further affidavit is the nature, context and extent of the new material intended to be produced and relied upon. If it is small and limited so that the other party is able to respond to it, then the Court ought to be considerate, taking into account all aspects of the matter. However, if the evidence...is such as to make it difficult or impossible for the other party to respond effectively, the Court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence.’

21. In this case the 1st and 2nd Respondents argue that the additional affidavits that they seek to file form part of their evidence; that the affidavits answer to some of the issues raised in the Petition; that they are critical to the determination of this matter. They have also explained the delay in filing on the basis that the County is large and with difficult terrain, so that getting the deponents was not logistically easy. It was not argued by the 1st petitioner that he would not be able to respond or engage with the information in the additional affidavits.

22. I have perused the affidavits. In my view they answer to direct matters raised in the petition. It must be remembered that an election petition is unlike a commercial dispute. It is about discerning the will of the voter exercising his right to vote, not the interpretation of commercial agreements. I also note that the petitioner has, in a separate application, sought to be supplied election materials and substantial information. These proposed deponents will be able to answer some of the issues raised by the petitioner. It will achieve the cause of justice to allow the affidavits to be filed. Instead of prejudice arising in the matter, issues will be directly answered, and there will be plenty of time for the petitioner to respond to such answers.

23. I therefore prefer to err on the side of caution by applying aligning myself with the overriding objective of the Election Petition Rules, 2017 as well as the Constitutional dictates of Article 159. I prefer that justice prevail over procedural technicalities. Availing the evidence through witnesses who were involved in the election will also facilitate the just, expeditious, proportionate and affordable resolution of the election petition, and the parties will be on equal footing.

24. In the end, the court hereby allows the filing of the 1st and 2nd respondents’ additional affidavits.

25. Costs shall be in the cause.

26. Orders accordingly.

Dated and Delivered at Nairobi this 9th Day of November 2017

______________________________

RICHARD MWONGO

PRINCIPAL JUDGE

Delivered in the presence of:

1. ……….………………….…for the 1st Petitioner

2………………………………for the 2nd Petitioner

3………..…………………….. for the 1st and 2nd Respondent

4 …………………………….. for the 3rd Respondent

Court Clerk…………………