[2022] KEHC 13611 (KLR)

Ayiera v Kimwomi & 3 others (Election Petition E002 of 2022) [2022] KEHC 13611 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13611 (KLR)

Republic of Kenya

In the High Court at Nyamira

Election Petition E002 of 2022

K Kimondo, J

October 12, 2022

Between

Dennis Omwenga Ayiera

Petitioner

and

Nyaribo Amos Kimwomi

1st Respondent

James Gesami

2nd Respondent

County Returning Officer, Nyamira

3rd Respondent

IEBC

4th Respondent

Ruling

1. The joint Notice of Motion by the County Returning Officer and the Independent Electoral Boundaries Commission (hereafter the 3rd and 4th respondents) craves three principal reliefs: Firstly, for extension of time to file and serve their response to the petition; secondly, that upon expansion of the time, the attached witness affidavits be deemed to be properly filed and served; and, thirdly, that the applicants be granted a further 3 days leave to formally file some other witness affidavits annexed as “drafts”.

2. The application is dated 8th October 2022 and premised on the deposition of their learned counsel, Mr. D. Muyundo, and another affidavit by Anthony Njoroge Douglas all sworn on even date.

3. While the motion finds favour in the eyes of the 1st and 2nd respondents, it is obviously and strenuously opposed by the petitioner.

4. The regulatory framework in an application of this nature is found in the Constitution, the Elections Act and the Regulations thereunder. Article 159 2(d) of the Constitution provides:In exercising judicial authority, the courts and tribunals shall be guided by the following principles –(d)Justice shall be administered without undue regard to procedural technicalities; and……..

5. Rule 11 (1) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 states as follows:Upon being served with a Petition in accordance with Rule 10, a respondent may oppose the petition by filing and serving a response to an election petition within 7 days.

6. Rule 19(1) goes further to provide that:Where an act or omission is to be done within such time as may be prescribed in these Rules or ordered by an elections court, the election court may, for the purposes of ensuring that injustice is not done to any party, extend or limit the time within which the act or omission shall be done with such conditions as may be necessary even where the period prescribed or ordered by the court may have expired.(2)Sub-rule (1) shall not apply in relation to the period within which a petition is required to be filed, heard and determined.

7. The overriding objective of the election court is captured in Rule 4 (1) thus:The objective of these Rules is to facilitate the just, expeditious, proportionate and affordable resolution of the 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).

8. Rule 5(1) further provides that:5(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.

9. It is thus clear from Rule 19 that power reposes in the election court to vary timelines on matters prescribed by the Rules or by the court. In Charles Kamuren vs Grace Jelagat Kipchoim & 2 Others, Court of Appeal at Nairobi, Civil Appeal 159 of 2013 [2013] eKLR the learned judges held:We agree with the learned trial Judge that Rule 20 only provides for extension of time for matters whose time is prescribed by the Rules or by the court but not those prescribed by the Act.

10. However, the discretion under Rule 19 is not an open cheque: An election petition is a special proceedings complete with strict timelines governed by the Constitution, the Elections Act and the Rules and Regulations made thereunder. See generally Christopher Odhiambo Karan v David Ochieng & 2 others, Supreme Court of Kenya, Petition 36 of 2018 [2018] eKLR.

11. When I juxtapose those principles against the facts here, I find as follows: The IEBC has displayed a pattern of delays that are ill explained. It concedes that it was properly served with the amended petition through The Standard newspaper of 12th September 2022. It did not file a response within the prescribed time. In fact, its learned counsel only appeared in court on 11th October 2022 at noon with the above motion. It was on the day nominated for a pre-trial conference.

12. The delay is casually explained away as resulting from failure to be served with the hard copies of the petition in reasonable time; and, that its potential witnesses were casual employees scattered in various parts of the country.

13. True, the petitioner did not avail hard copies of the petition in good time. In Ruling No. 2 in this petition delivered today, I observed as follows-It is not in dispute that the petitioner undertook service by advertisement in The Standard newspaper. By dint of Rule 10(3) (a), such substituted service must conform with Form 3 of the Rules which requires the respondent to collect copies of the petition from the court registry. It is common ground that only 3 copies of the petition were filed at the registry. This is supported by paragraph 6 of the above-mentioned affidavit of Mr. Asakhulu. I readily find that the petitioner did not file sufficient copies at the registry to enable delivery to the 1st and 2nd respondents.

14. But the applicant’s counsel freely conceded that he finally received the hard copies of the petition on or about 21st September 2022. The delay between that date and the 11th October 2022 is too lengthy. I have reached the conclusion that the delay is not well explained. The test was well explained in Ivita v Kyumbu [1984] KLR 441: If the delay is prolonged and ill-explained it is inexcusable.

15. However, I have taken into consideration that the 4th respondent is a public body. In conjunction with its County Returning Officer (the 3rd respondent) it conducted the impugned election. Some of the primary reliefs sought are against those two respondents. If the petitioner’s pending motion for scrutiny is allowed, the 3rd and 4th respondents would be primary actors in the exercise. Needless to say, the IEBC retains custody of key election materials and results of the election.

16. Despite its despicable conduct in responding to the petition, I am also alive that denying part of the reliefs sought would greatly prejudice the 1st respondent whose election is sought to be overturned. But whereas I am prepared to extend time to respond to the petition and to admit the affidavits attached to the pleading, I decline to entertain further delay in the prayer “to be granted a further 3 days leave to formally file some other witness affidavits annexed as drafts”.

17. My final orders are thus as follows-a.That time be and is hereby extended within which the 3rd and 4th respondents ought to have filed their response to the petition, replying affidavit and other witness affidavits attached to the Notice of Motion dated 8th October 2022 to the intent that they will be deemed to have been filed and served within the required time.b.That the prayer to be granted 3 days leave to formally file other witness affidavits annexed as drafts lacks merit and is disallowed.c.That costs shall be in the petition.It is so ordered.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 12TH DAY OF OCTOBER 2022. KANYI KIMONDOJUDGERuling read in open court in the presence of:Mr. Mbegi & Mr. Maeche for the Petitioner instructed by Nchogu Omwanza & Nyasimi Advocates.Mr. Anyoka for the 1st & 2nd respondents instructed by Anyoka & Associates Advocates.Mr. Muyundo for the 3rd and 4th respondents instructed by D. W. Muyundo & Associates Advocates.Ms. Hilda Anita, Mr. Bernard Terer & Ms. Aminah, Court Assistants.