[2022] KEHC 13610 (KLR)

Ayiera v Kimwomi & 3 others (Election Petition E002 of 2022) [2022] KEHC 13610 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13610 (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 petitioner lodged a petition challenging the election of the 1st respondent as the governor for Nyamira County in the general elections held on August 9, 2022. The petition was filed on September 7, 2022 and well within the time stipulated by section 76 (1)(a) of the Elections Act.

2. On September 9, 2022, and still within time, the petitioner filed an amended petition but without leave of the court. During the pre-trial conference held on October 11, 2022, he orally sought leave to have the pleading admitted; and, that the same be deemed to have been regularly filed and served.

3. The reasons proffered are four-pronged: Firstly, that the impugned pleading was filed without delay. Secondly, that at the material time the petitioner could not obtain leave as the election court had not been constituted or gazetted; thirdly, that the action was meant to save on judicial time; and, fourthly, that there would be no prejudice to the respondents because they were served, from the very beginning, with the amended petition.

4. The application is contested by all the respondents. The key objection is that the petitioner should not have made the step without the court’s leave.

5. On October 11, 2022 I heard brief arguments from learned counsel for all the disputants.

6. I take the following view of the matter. Section 76 (4) of the Elections Act provides as follows-“A petition filed in time may, for the purpose of questioning a return or an election upon an allegation of an election offence, be amended with the leave of the election court within the time within which the petition questioning the return or the election upon that ground may be presented." [underlining added].

7. Like I have stated, it is common ground that the amended petition was filed and served within time. The election court had not yet been gazetted. It is thus a truism that leave could not have been obtained earlier. True, the petitioner could have held his horses but it would have led to further delays for a time-bound action. Having also been served with the amended petition within the prescribed time, I am hard pressed to say that the respondents would be unduly prejudiced.

8. Furthermore, article 159 of the Constitutionas read together with rule 4 (1) of the Elections (Parliamentary and County Elections) Petition Rules 2017 call for just, expeditious, proportionate and affordable resolution of election disputes. I will thus exercise my discretion in favour of the applicant.

9. For all those reasons, and in the interests of justice, I order as follows-(a)That leave be and is hereby granted to the petitioner to file and serve the amended petition out of time to the intent that the amended petition dated September 9, 2022 and lodged on even date be and is hereby deemed to have been filed with such leave and served within time.(b)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.