[2022] KEHC 13651 (KLR)

Ayiera v Kimwomi & 3 others (Election Petition E002 of 2022) [2022] KEHC 13651 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13651 (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

Independent Electoral Boundaries Commission

4th Respondent

Ruling

1. By a notice of motion dated September 23, 2022, the 1st and 2nd respondents pray for the following orders: -i.[Spent]ii.That the honorable court be pleased to extend time within which to file a response to the petitioniii.That upon time being enlarged, the 1st and 2nd respondents’ response to the petition and various affidavits in support thereof be deemed as properly filed and served.iv.That the court be pleased to grant any other suitable order that it deems fit and just in the circumstancesv.That costs of this application be provided for.

2. The application is predicated upon the deposition of Hon. Nyaribo Amos Kimwomi dated September 23, 2022 and another affidavit sworn on even date by a process server, John Webo Asakhulu.

3. From the application, affidavits, submissions and cited authorities, the issue for determination is whether the 1st and 2nd respondents have made out a case for the exercise of this court’s discretion to extend time.

4. The guiding principles in an application of this nature are found in the Constitution, the Elections Act and the regulations thereunder. article 159 2(d) of theConstitution 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. InCharles Kamuren v Grace Jelagat Kipchoim & 2others, 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. On whether the 1st and 2nd respondents deserve the extension sought, I have considered the reasons given and the period of delay. It is the 1st and 2nd respondents case that the petitioner did not avail hard copies of the petition until September 16, 2022 at about 16:00 hours which substantially contributed to the failure to comply with the set timelines.

12. The retort by the petitioner is that the respondents were properly served by advertisement in The Standard newspaper of September 12, 2022. Additionally, the petitioner’s counsel emailed the respondents with the petition.

13. 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. 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. It follows as a corollary that the 1st and 2nd respondents have reasonably explained the delay and are entitled to extension of time to file their response.

14. I will now turn to the additional prayer to extend time to file “various affidavits” to the response. Under rule 11(5) a respondent who wishes to call a witness is required to file an affidavit by that witness at the time of filing the response. See rules 11 (6) and 11(7) respectively.

15. The pleading that I have allowed to stand was filed on September 23, 2022. It annexed two witness affidavits of the 1st respondent, Hon. Nyaribo Amos Kimwmni and Richard Okiega Nyabate. In view of my earlier findings, I am prepared to extend the time for filing of those two depositions to the intent that they will be deemed to have been and served within the required time. But I am not persuaded to extend the order to another batch of 23 affidavits filed another 4 days later on September 27, 2022 without leave or any formal motion for their admission.

16. Paraphrased, that last batch of 23 affidavits was just dumped into the court. It would not only be highly prejudicial to the petitioner, but the oral application to admit them is on both a legal and procedural quicksand. See Christopher Odhiambo Karan v David Ochieng & 2 others, Supreme Court of Kenya, Petition 36 of 2018 [2018] eKLR.

17. For all those reasons, time is hereby extended for the 1st and 2nd respondents to file and serve their response dated September 23, 2022 together with the two annexed affidavits of Hon Nyaribo Amos Kimwomi and Richard Okiega Nyabate out of time; and, to the intent that they will be deemed to have been filed and served within the required time. However, the application by the 1st and 2nd respondents to extend the time for another lot of 23 affidavits filed on September 27, 2022 is disallowed.

18. 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.