[2013] KESC 16 (KLR)

Aluochier v Independent Electoral and Boundaries Commission & 19 others (Civil Application 2 of 2013) [2013] KESC 16 (KLR) (Election Petitions) (25 March 2013) (Ruling)

ISAAC ALUOCH POLO ALUOCHIER v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 19 others [2013] eKLR

Neutral citation: [2013] KESC 16 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Election Petitions

Civil Application 2 of 2013

WM Mutunga, CJ, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & NS Ndungu, SCJJ

March 25, 2013

APPLICATION BY MR. ALUOCH POLO ALUOCHIER FOR JOINDER

IN THE PETITIONS

IN THE MATTER OF ARTICLES 22, 138 AND 140 OF THE CONSTITUTION

IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLES 2, 10, 27, 77(2), 88, 99, 137AND 148 OF THE CONSTITUTION

IN THE MATTER OF THE ALLEGED CONTRAVENTION OF SECTIONS 22, 23, 59 AND 72 OF THE ELECTIONS ACT

IN THE MATTER OF RULE 25(2) OF THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES, 2013

IN THE MATTER OF RULE 50 OF THE SUPREME COURT RULES, 2012

Between

Isaac Aluoch Polo Aluochier

Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Hon. Raila Amollo Odinga

2nd Respondent

Uhuru Muigai Kenyatta

3rd Respondent

Wycliffe Musalia Mudavadi

4th Respondent

Peter Kenneth

5th Respondent

Stephen Kalonzo Musyoka

6th Respondent

William Samoei Ruto

7th Respondent

Orange Democratic Movement

8th Respondent

The National Alliance

9th Respondent

United Democratic Forum Party

10th Respondent

Kenya National Congress

11th Respondent

Ahmed Isaac Hassan

12th Respondent

Lilian Bokeeye Mahiri - Zaja

13th Respondent

Yusuf A. Nzibo

14th Respondent

Mohamed Alawi Hussuin

15th Respondent

Abdullahi M. Sharawe

16th Respondent

Thomas Letangule

17th Respondent

J. Muthoni Wangai

18th Respondent

Albert Camus Onyano Bwire

19th Respondent

Kule Galma Godana

20th Respondent

Entitlement to be enjoined as a party to a presidential election petition

The applicant made an application to be enjoined in the presidential election petition proceedings. The court held that the applicant’s case appeared more distinct by its academic element than by the object of securing the ‘righting’ of an electoral wrong. The court noted that it was not surprising that the petitioners in the petition that the applicant sought to be enjoined perceived the application as an encumbrance upon the setting of their case towards expeditious disposal.

Reported by Emma Kinya Mwobobia

Election Law- presidential election petition – joinder of parties in a presidential election petition – application to be enjoined as a party in an existing presidential election petition – entitlement for joinder in the petition – provision under the Supreme Court (Presidential Election Petition) Rules - court consideration of the applicant’s entitlement for joinder in the petition – whether the applicant was entitled to be enjoined as a party in the presidential election petition in the circumstances – Supreme Court (Presidential Election Petition) Rules, 2013 rule 17.

Brief facts The applicant made an application to be enjoined in the presidential election petition proceedings which had been lodged and consolidated with various other petitions with regard to the presidential election. However, none of the advocates having conduct of the presidential election petition supported the application to be enjoined as a party to the petition. Counsel for the respondents submitted that the application for joinder could only have served the purpose of delaying the dutiful prosecution of the petition and further, that the applicant had not complied with the rules regulating the lodging of a presidential election petition and his issues were by no means related to the petitioner’s issue in the petition he had applied to be enjoined as a party. It was therefore submitted that the applicant’s motion was prejudicial to the petitioners in the said petition and there would be no basis for allowing it.

Issues i. Whether the applicant was entitled to be enjoined as a co-petitioner in another existing presidential election petition under the electoral laws.

Relevant provisions of the Law Supreme Court (Presidential Election Petition) Rules, 2013Rule 17(2) any person who was entitled to be a petitioner in the petition may apply and be joined as a co-petitioner at any time before the conclusion of the hearing of the petition.

Held 1. The applicant had not addressed the question of entitlement to be enjoined as a petitioner in respect of the existing presidential election petition but had devoted his attention to important issues of constitutional principle which he sought to have adequately ventilated.2. The applicant’s case appeared more distinct by its academic element than by the object of securing the ‘righting’ of an electoral wrong. It was therefore not surprising that the petitioners in the petition that the applicant sought to be enjoined perceived the application as an encumbrance upon the setting of their case towards expeditious disposal.3. Settlement of disputes of a practical nature was the primary purpose for which the judicial establishment was conceived and must have been regarded as the real justification for any proceedings that may have been lodged.4. The applicant’s case as perceived against a context of judicial engagement had an improbable ring and by necessity, all the advocates in the petition would not welcome the applicant by way of joinder as the applicant sought.5. There was no practicability or sincerity in the applicants claim and therefore the court could not have allowed it.

Application dismissed.

Citations StatutesNone referred toAdvocatesNone mentioned

Ruling

(1)After giving this application due consideration, we have come to the conclusion that it cannot be allowed at this stage. While we have a commitment to hear and determine the three petitions on the basis of which the court has been moved, time is of the essence – and judicial notice is to be taken of this fact. In our assessment of the present setting for the resolution of the issues before us, the belated application now being brought can only cause unnecessary delay. Accordingly, we hereby disallow the application.

(2)There shall be no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF MARCH, 2013. ........................W.M. MUTUNGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT........................P.K. TUNOIJUSTICE OF THE SUPREME COURT........................M.K. IBRAHIMJUSTICE OF THE SUPREME COURT........................J.B. OJWANGJUSTICE OF THE SUPREME COURT........................S.C. WANJALAJUSTICE OF THE SUPREME COURT........................N.S. NDUNGUJUSTICE OF THE SUPREME COURTI certify that this is a true Copy of the original.REGISTRARSUPREME COURT OF KENYA