[2017] KEHC 2331 (KLR)

RPUBLIC OF KENYA

IN THE HIGH COURT AT KAKAMEGA

ELECTIONS PETITION NO. 06 OF 2017

APUNGU ARTHUR KIBIRA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

VERSUS

1. INDEPENDENT ELECTORAL & BOUNDARIES COMMISON ::::1ST RESPONDENT

2. THE RETURNING OFFICER LUANDA , CONSITUENCY ,

SYLVESTER OUMA OMOLLO ::::::::::::::::::::::::::::::::::::::::::2ND RESPOENDNT

3. OMULELE CHRISTPHER ::::::::::::::::::::::::::::::::::::::::::::::::::3RD RESPONDENT

RULING

1. There are three applications before me, two by the petitioner and one by the 3rd Respondent. The petitioners applications are both dated the 29/9/2017.

2. In his first application , the petitioner Apungu Arthur Kibira moved the court under Rule 5(1) 12(9) and 19 of the (Parliamentary and County Elections) Petitions Rules,2017 orders that :-

1. The court be pleased to enlarge time within which the petitioner should file Affidavits of his witnesses in support of the petition and in particular the affidavits of the following;(30 names are stated)

2. That leave be granted to the petitioner to file a further Supplementary Affidavit.

3. Costs be provided.

3. The grounds upon which the application is brought may be summarized that; the said affidavits could not be filed together with the petition as the petitioner encountered logistical problems in tracing the said witnesses, by circumstances beyond the petitioners control, and that the proposed affidavits elaborate on the alleged irregularities on the part of the Respondents and therefore they are necessary.

4. The petitioner swore an affidavit in support on the 29/9/2017 . His disposition in summary is that there were numerous irregularities during the Election process in several polling stations in the constituency and by the time, he traced the witnesses, to swear their affidavits time had lapsed. He has annexed” draft affidavit “, (30) in number staring the nature of the that contents.

5. He further avered that at the time of filling the Petition he forgot to annex the nomination certificate hence seek leave to file a supplementary affidavit to correct the anomally.

6. The application was opposed by the Respondents . The 3rd Respondent filed grounds of opposition on the 5/10/2017 . His opposition is that the purported affidavits will introduce new evidence and material that will bring about amendments to the petition which is in contravention of the provisions of the Election Act No. 24 of 2011, and Rule 12 of the Elections ( parliamentary and County) Election petitions Rules 2017.

7. It was submitted that the additional affidavits by their large number will prejudice the respondents case as only two competent witness affidavits had been filed together with the petition; the others been incompetent for lack of attestation:

8. I was urged to decline the application as the strict Election petition timelines ought to be safeguarded.

9. The 1st and 2nd Respondents filed grounds of opposition too on the 5/10/2017 . Citing Rule 12 of the Elections ( parliamentary and county) petitions Rules 2017 , it was submitted that no good reasons were advanced for the failure to file the affidavits in time and that 60 days delay after the preannouncement of the Election results is too in ordinate and not sufficiently explained and therefore an afterthought . Several authorities were cited opposition of the application.

10. I have considered the parties arguments and the relevant legal provisions together with the authorities. On the 3/10/2017 leave to the Applicant to file a Supplementary Affidavit was granted by the court together with corresponding leave to the respondents to file further replies.

11. I have also considered to grounds of the petition. They include vote bribery, massive systematic and deliberate non-compliance with the constitution and the law irregularities. Also, ballot stuffing, violence and flawed tallying.

I have seen the proposed draft affidavits. In their totality, they are meant to support the above grounds for the petition.

12. I agree with the respondents that Rule 12 and 19 of the Elections( parliamentary and county) petitions Rules 2017 and the Elections Act No. 24 of 2011 state strict timelines in filing of election related documents.

I am not persuaded that the petitioner has adduced enough affidavit evidence to demonstrate the reasons for the delay which, for purposes of an election is inordinate.

13. Under Rule 19 Elections Acts 2011 the court is empowered to extent or reduce time for doing a thing for purposes of ensuring that injustice is not done to a party.

This is however subject to the election courts discretion which ought to be exercised judiciously.

See Election petitionon No. 5 of 2013 Raila Amolo odinga Vs IEBC & others (2013) eKLR. The court emphasized adhearence to timelines in Election petitions.

14. In the just ended Presidential Election No. 1 of 2017 (2017) eKLR.

Raila Amolo Odinga Vs IEBC and others, the Supreme Court emphasized the need to determine whether leave should be granted to a party to file further and additional affidavits in support of the petition. Once it is satisfied that the affidavits introduce new evidence and change to the character of the petition, the orders ought not be granted. This is not the position in this application , in my view.

15. Citing the case of Kakuta Hamisis Vs Peris Tobiko & 2 others. Election Petition No. 5 of 2013 , I find that there must be a fair and level playing ground so that no party or the court loses time it is entitles to a nd no extra burdens should be imposed on a party as a result of omissions of inadvertedness which were forceable or could have been avoided.

The upshort is therefore that , the application is merited and that the election court has power to enlarge time , and to set time for the filing of the proposed affidavits.

16. Accordingly I allow the application dated 29/9/2017 , but not without condition; that

(1). The proposed affidavits shall be filed and served upon the Respondents within 2 days of this ruling , but shall limit them to 15 only , out of the 30 proposed .

(2). The Respondents shall file their responses (if any) within two days of service.

(3). The Supplementary Affidavit filed by the petitioner on the 9/10/2017 is competently filed , leave having been granted by this court on the 3rd October, 2017.

17. The second application by the petitioner is also dated 29/9/2017.

He seeks the following:

a). An order for Recount and /or scrutiny of the ballots cast in respect of the general elections conducted on the 8/8/2017 and more particularly in respect of the election of member of National Assembly, Luanda Constituency in all the 99 streams of the 62 Polling Station.

b). In the alternative an order do issue for recount and /or scrutiny of ballot cast in respect of the general elections for the member of National Assembly , Luanda Constituency in polling Stations whose errors have been identified during the trial and whose results of the Election are disputed by the petitioner.

18. The application is opposed by the Respondents by their Replying Affidavits who based their objections to the only two competent affidavits in support of the petition. Having granted leave to the petitioner to file further 15 witnesses affidavits, it would not be just or prudent to interrogate the said application before the further witness affidavits and responses by the Respondents are filed. See ruling of this court dated 9/10/17.

This is informed by the relevant Election legal provisions and case law on the matter of recount and scrutiny.

19. (a) Rule 29 of the Elections (Parliamentary and County Elections ) petition Rules , 2017 provides.

i. The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.

ii. On an application under sub rule (1) an election court may. If it is satisfied that there is sufficient reason order scrutiny or recount of the votes . See also section 80(4) (a) and (82) of the Election Act , 2011.

20. Considerations for an order of scrutiny/recount were set out extensively in the Gatirau Peter Munya Vs Dickson Mwenda Kithiuji & 2 others( 2014) eKLR in Supreme Court Civil Application No. 5 of 2015. Sufficient reasons must be established in the context of the pleadings of the evidence or both. That right does lies as of course.

As pleadings by way of the further affidavits are not closed it is not possible to discern the necessity at this stage. It ought not be a gambling exercise, or a fishing expendition to unearth any irregularities or malpractice . Such must be pleaded, and the evidence or irregularities must be established prior to an order of scrutiny and recount.

21. At what stage then should an order for scrutiny and recount be made?

Section 82(1) Election act 2011 states that an election court may on its own motion or on application of any party, during the hearing order for scrutiny of votes. Rule 29 of the rules are specific that an order of scrutiny or recount shall be confirmed to the polling stations in which the results are disputed .

It could be ordered and conducted prior to the hearing of the petition if sufficient reasons are demonstrated form the affidavits or during the hearing as the evidence tendered may demonstrate the necessity.

22. However, if the only prayer sought in the petition , is for scrutiny and recount , it may be ordered prior to pre- trial stage on the basis of the petition and witness affidavits.

In any other scenario, the only way the court c an test the veracity of the same , is after the petitioner has adduced evidence during the actual hearing of the petition . The petitioner may do so after his witnesses have testified , or after all the witnesses have testified.

See Rishad H.A. Amana Vs IEBC & 2 others Malindi petition No. 6 of 2013 , (2013) eKLR

23. For those reasons , and in exercise of my judicial discretion vested with as an election court , and under section 82(1) of Election Act 2011, to the extent that the election court may on its motion make such orders I come to the findings that , given the strict timelines during which the court shall hear and determine the petition , that the best time for the determination whether or not to make an order for scrutiny and /or recount is by way of testing the veracity of evidence adduced during the hearing of the petition and particularly after the petitioner and his witnesses have testified.

24. That is the order that comments to this court in respect of the petitioner’s 2nd application foretasted . The court shall revisit the issue at the close of the petitioners evidence .

25. The 3rd Respondents Applicationis dated 28/9/2017 and filed on the 3/10/2017. It is premised under Article 87(2) of the Constitution of Kenya (COK) Section 74 and 75 (1A) and (2) of the Elections Act 2011, and Rule 13 of the ( Parliamentary and County Elections ) petition Rules 2017 . It seeks two orders:

(1) That this Honourable Court does strike out the petition herein filed on the 22nd September, 2017 .

(2) That these proceedings in Kakamega Election petition No. 6 of 2017 be stayed until the petitioner pays costs to all the Respondents in Kakamega High Court Election petition No. 7 of 2013, and in Nairobi – Civil Appeal No. 53 of 2013 between the parties within 7 days ( paraphrased).

(3).From the date of this order failure to which this petition is hereby dismissed with costs to the Respondent.

(4). That the Deputy Registrar of this Court for issue to this court the amount owed in costs by the petitioner in Election petition No. 7 of 2013 ( paraphrased).

(5). That this court do enhance the deposit for security for costs to shs. 1,500,000/= in respect of each respondent.

26. The 3rd Respondent has sworn the supporting affidavit . I have perused the ground in support as appears on the face of the application .

The salient grounds and reasons for the application and reliefs sought are that in the 2013 Parliamentary Elections, the petitioner hereof lost to the applicant and an order of costs against him was ordered . Upon taxation a sum of shs 985,950/= was certified as the costs due to the Applicant. The Respondent appealed against the decision to the Court of Appeal in Nairobi Civil Appeal No. 53 of 2013.

27. Once again the Petitioner lost and an order of costs was made against him. The appeal was dismissed with costs assessed at shs. 300,000/= in respect of both the 1st & 2nd respondents and shs, 200,000/= in respect of the 3rd Respondent, now the applicant in this application.

28. It appears that the costs, both at the High Court and at the Court of Appeal are yet to be paid. Some amount has been confirmed as unpaid. The applicants as Advocate Mr. Tullo has submitted that todate a sum of shs. 692,951/= is outstanding in favour of the Applicant. He owned up that that sum is subject of a Review application in another court, and pending hearing. He further confirmed that no attempt to execute for the balance has been made. He however urged this court to punish the petitioner by enhancing the deposit for security for costs form shs. 500,00/= to shs.1,500,000/= for each respondent in the petition, failing which the petition should be struck out.

29. The petitioner /Respondent opposed the application by a Replying Affidavit filed on the 5/0/2017.

He admits there being a balance of shs. 242,990 /= but subject to review in the 2013 petition, which application is pending for hearing.

30. It is submitted that under the Election laws, there is no provision for Constitutional matter, nor is the Election court seized with Jurisdiction to enhance the security for costs set out in the election rules and the constitution . It was submitted that execution of decrees on costs is governed by the Civil procedure Act, and the Rules.

31. An order for striking out any pleading and particularly an Election petition ought to be granted very sparingly upon clear legal provisions within the Election laws, and the constitution.

Section 80(d) Election Act 2011 demands that all parties be afforded an opportunity to be heard without undue regard to technicalities – see Article 159(2) (d) COK. The underlying consideration that.

32. That an election court ought to consider in an application for striking out are stated in D.T. Dobie & Co. ( Kenya) Ltd Vs Muchina (1982) eKLR,that:

“ No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action or so weak to as to be beyond redemption and incurable by amendments “.

See Election petition No. 11 of 2013 Hozea Mundu Kiplagat Vs Sammy Komen Mwaita & 2 others (2013) eKLR

33. Looking at the grounds put forth in support of the application, one finds no seriousness in the application. It is not expected that this court will step out of its mandate, which is to hear and determine this petition , and to give itself the requisite jurisdiction to hear issues raised in another Election petition , No. 7 of 2013 , though between the same parties.

All issues arising therefore including the matter of costs , whether due or not , paid or not paid , can only be interrogated and determined in the particular petition.

This court lacks the jurisdiction to determine issues in an earlier petition. The jurisdiction to hear and determine election petitions is a special jurisdiction. Conferred to the High Court by the Constitution.

34. Issues of costs including enhancement from the set amount of shs. 500,000/= being security for costs for a parliamentary petition cannot be abrogated . A High Court Judge is designated and gazette against a particular petition and cannot give herself/himself jurisdiction to hear or determine issues or disputes in a different petition.

See David W. Murathe Vs Samuel Macharia – Civil Appeal No. 171 of 1998.

35. The substantive Election Act No.24 of 2011 section 78 read together with Rule 11(1) of the Rules deposit as for the amounts for payments security for costs.

I cannot exercise or purport to derogate to myself jurisdiction to amend the said section and rules to enhance the prescribed amounts , or to punish the petitioner as I was urged to. That duty lies with parliament.

The business of the court is not to punish a party but a dispense Justice in the most affordable, timely and expenditions manners as dictated under Article 159 of the Constitution and section 80 of the Election Act 2011.

36. I have considered arguments by the applicant that this petition is Res Judicata, having regard to the 2013 Election Petition. With respect, this 2017 Election Petition is a completely different petition arising from different circumstances. Other than the petitioner and the Respondents being the , same parties , no other aspect can be said to be similar.

37. Provisions of Section 7 of the Civil procedure Act , In my view do not apply to Election petitions .If it were so , it would follow also that the now concluded Presidential Election No. 1 of 2017 before the Supreme Court was Re Judicata in view of the 2013 presidential Election Petition No. 5 of 2013 . See Civil Appeal No. 42 of 2014 , John Florence Maritime Services Ltd Vs Cabinet Secretary for Transport and Infrastructure & 3 others (2015) eKLR.The court of Appeal in the said appeal determined that the doctrine of Res judicata is applicable in constitutional petitions or as well as in Civil litigation. I believe this is what informed the Applicant ( 3rd Respondent) to bring this application premised on the constitutional provisions.

38. The Election Act 2011 and the Rules and regulations thereunder are an all inclusive legislation and all disputes arising there from of necessity ought to be brought under such legislation and the constitutional provisions in respect of Elections disputes.

39. Having made the above observations and findings the upshot is that application is devoid of merit. I proceed to dismiss it.

40. Each party shall bear own costs of the application.

Dated and delivered this 10th October, 2017 .

J.MULWA

JUDGE