[2017] KEHC 9727 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHASKOS

ELECTION PETITION APPEAL NO.2 OF 2017

BONIFACE MUISYO NGULI ..........................................................APPELLANT

VERSUS

KAMITU ALEX ....................................................................1ST RESPONDENT

THE INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSIONS (I.E.B.C.).................................................2ND RESPONDENT

RETURNING OFFICER, TALA TOWNSHIP ....................3RD RESPONDENT

Being an Appeal from the ruling delivered by the Honourable ORIMBA Magistrate on 31st October, 2017

RULING

1. The Appellant/Applicant has filed a Notice of Motion dated 27/11/2017 seeking for the following prayers:-

(1) Spent

(2) That pending the hearing and determination of the appeal filed on even date there be a stay of proceedings in Election Petition No., 1 of 2017 at the Kangundo Senior Resident Magistrate’s Court.

(3) That this Honourable court do issue directions as to hearing of the Appeal herein on priority basis.

(4) That the costs of the application be provided for.

2. The Application is supported by the annexed affidavit of the Appellant BONIFACE MUISYO NGULI sworn on even date and further on the following grounds namely:-

(a) That the Appellant has already lodged a Memorandum of Appeal against the ruling of the Magistrate’s court at Kangundo in Election Petition No. 1 of 2017 delivered on the 31/10/2017.

(b) That the Appellant stands to be prejudiced if the lower court proceedings are not stayed as the same will proceed without a crucial part of the record that was struck out by the trial court.

(c) That the appeal raises points of law in that the trial court allowed an interlocutory Application without leave and notice to parties way after the close of pre-trial conference contrary to Provisions of Rule 15(2) and 18 of the Election (Parliamentary and County Elections) Petition Rules 2017.

(d) That it is in the interest of justice that this court do issue directions as to the hearing of the appeal on priority basis.

(e) That neither party to the proceedings herein will be prejudiced if the orders herein are granted as the parties will get an opportunity to ventilate the point of law issues.

3. The Respondents opposed the Application. The 1st Respondent raised the following grounds of opposition:-

(a) The delay in lodging this appeal is extremely inordinate as the ruling was delivered on the 31/10/2017 and the applicant has waited for a whole month until the hearing commenced with the 3rd Respondent’s evidence remaining.

(b) The appeal is fatally defective as it does not conform to the Election Petition Rules.

(c) The appeal has no justifiable grounds or reasons to merit any stay.

(d) The appeal is an afterthought.

(e) The appeal is premature as the Election court has not yet made its judgement

(f) The court has no jurisdiction to entertain appeals from rulings made at the interlocutory stage.

(e) The Application defeats the ends envisaged by the Constitution and statute on expeditious disposal of election petition under Article 87(1) of the Constitution 2010 and section 76 of the Elections Act 2011.

The 2nd and 3rd Respondents raised the following grounds of Opposition:-

(a) That this court lacks jurisdiction to deal with an appeal arising from an interlocutory ruling in an election petition.

(b) That the Applicant has been indolent in filing the appeal at a very late stage and in thus undeserving of any temporary measures.

(c) The Appellant/Applicant has failed to demonstrate any prejudice that would occasion him should the Application be dismissed.

(d) The appeal has no merit and the Appellant is not entitled to any of the orders sought in the Application.

(e) The Applicant has not sought to have the ruling of 31/10/2017 set aside.

(f) The appeal is incompetent and fatally defective as it does not contain all the documents referred to under Rule 34 (6) of the Elections (Parliamentary And County Elections) Petition Rules 2017 namely affidavit evidence and docuemtns entered before the trial court as well as a signed and certified copy of the order/decree appealed from.

4. Learned Counsels for the parties agreed to canvass the application by way of written submissions. It was submitted for the Applicant that a grant of an order of stay of proceedings in Kangundo Election Petition No.1 of 2017would be quite appropriate in order to enable the appeal herein to be canvassed even on priority basis which appeal has high chances of success and also in order to ensure that the Appellant’s rights under the law are protected.

It was submitted for the 1st Respondent that this court lacks jurisdiction to grant an order of stay of execution on an interlocutory application appealed against by a party. It was submitted that the only situation that could be allowed is when an appeal against a judgment is being made but not on a ruling on an interlocutory application as the case herein. It was further submitted that the interlocutory application complained of by the Appellant had been properly made before the election court before the commencement of the hearing which was proper under Rule 15(2) of the Elections (Parliamentary and County Elections) Petition Rules 2017. It was also submitted that the Appellant is guilty of inordinate delay in that he should have made the application prior to the 27/11/2017 when the hearing kicked off since as at now the Appellant who was the Petitioner has already tendered his evidence and also the 1st and 2nd Respondents as well with the 3rd Respondent remaining to tender his evidence. It was submitted that no good reasons have been given for the delay in moving to court right from the time the ruling was made on 31/10/2017. It is the 1st Respondents view that the Appellant’s actions is a scheme to derail the proceedings at Kangundo Law courts and same should not be entertained in view of the strict timelines in the finalization of the Election Petitions as dictated by Article 87 (1) of the Constitution and Section 76 of the Elections Act 2011. Several cases were cited namely:-

(i) Ferdinand Ndungu Waititu =Vs= IEBC & 8 Others Civil Application No. 137 of 2013.

(ii) Hon. Gagawash Nelson G. Wambuzi = Vs Kenneth Lebogo – election Petition No. 00100 of 2011 (Uganda)

(iii) JSC =Vs= Kalplana H. Rawal – Civil Application No. 308 of 2015 [2015] EKLR

(iv) Marble Muruli =vs= Wycliffe Ambesta Oparanya & 3 others – election Petition No. 5 of 2013 [2013] eKLR.

It was submitted for the 2nd and 3rd Respondent that this court lacks jurisdiction to deal with a ruling in an election Petition in that the Petition is yet to be determined by the Kangundo Magistrate’s court and as such the provisions of Rule 34 of the Election (Parliamentary and County Elections) Petitions Rules 2017 is yet to crystallize since a judgement has not been made by the lower court. It was further submitted that Section 75 and 80 of the Elections Act 2011 does not feature the High court in determining of interlocutory rulings on appeal and that it is the election court itself to deal with interlocutory applications and therefore the appellant should wait for the determination of the matter then prefer an appeal. It was also submitted that the Appeal is unlikely to succeed and that the Appellant has been rather lethargic due to the strict timelines.

5. I have considered the Appellant’s Application and the submissions of the learned counsels as well as the cases cited herein. It is not in dispute that a ruling was delivered on the 31/10/2017 by the Kangundo Principal Magistrate’s Court in Election Petition Number 1 of 2017 in which the said court struck out a further affidavit of the Appellant herein. It is also not in dispute that the parties in the said Election Petition have presented their evidence with the 3rd Respondent remaining to tender his evidence. The issue for determination are as follows:-

(1) Whether this court has jurisdiction to grant an order of stay of proceedings.

(2) Whether the Application to stay proceedings has been made timeously.

(3) What directions are to be issued regarding the heairng of the appeal herein?

6. As regards the first issue, the general rule of thumb is that a party is entitled to move to a higher court and seek orders to stay proceedings of a lower court. However there are exceptions to this rule in that there are certain cases such as election petitions where statutory and Constitutional timelines are prescribed. In the present circumstances this being an election petition the same is subject to the provisions of Article 87 (1) of the Constitution and Section 76 for the Elections Act 2011 whereby the petition now pending before the Kangundo Law Courts should be concluded within a period of six (6) months from the date it was lodged before court. Even though Section 75 and 80 of the Elections Act 2011 as well as Rule 34 of the Elections (Parliamentary and County Elections) Petition Rules 2017 envisage that appeals form the Judgement of Magistrates courts shall lie to the High Court, I find that an aggrieved party to a ruling by the same courts is entitled to move to the High Court on appeal. This is so because of the right to appeal allowable following the decisions of the court. Indeed every decision except at the apex court (Supreme Court) provides an aggrieved party to appeal against the same. However due to the strict timelines provided for the conclusion o f the election petitions, it is not likely that an appeal would be entertained by the High Court unless it is done while the petition is permitted to be heard. This then makes it a little bit harder for an Appellant seeking an order of stay of proceedings pending the determination of an appeal. In the case of FERDINAND NDUNGU WAITITU =VS= IEBC & 8 OTHERS – CA NO. 137 OF 2013 the court held as follows:-

“.................... we think the limitation to the right of appeal was deliberate realizing that in the course of hearing of an election petition a number of interlocutory applications that occasion interlocutory rulings do arise and if any party is aggrieved by those decisions were allowed to appeal or seek stay of proceedings pending appeal, it would be difficult, nay, impossible, to conclude an election petition before the high court within the stipulated period of six (6) months.”

Going by the above decision, I find that it would be improper to grant stay of the proceedings now ongoing at Kangundo Law Courts. It has been disclosed that the Appellant has already tendered his evidence together with his witnesses and that the 1st and 2nd Respondents evidence has also been tendered and that it is the 3rd Respondent’s evidence to be received by the trial court before a date for judgement is reserved. It was quite unusual for the Appellant to wait until the reception of his evidence and the other Respondents only to move to this court to seek an order of stay of proceedings. I find that the Appellant ought to have exercised his right immediately the ruling was delivered on the 31/10/2017 but not to wait until he and most of the Respondents have tendered evidence to make this move. I find that the Appellant’s conduct had the effect of waiving his right for an order of stay of proceedings as sought herein. It is also noted that the Appellant has not sought to set aside the ruling of the 31/10/2017 and therefore I decline the Appellant’s request for stay of proceedings in Kangundo Election Petition 1 of 2017. I order that the said proceedings shall proceed as scheduled by the trial court.

7. As the regards the second issue, it is noted that the ruling of the trial court was delivered on 31/10/2017 and that the present Application was made almost after one month thereafter and after the close of the evidence of the Appellant and the 1st and 2nd Respondents. The trial court is now in the process of receiving the evidence of the 3rd Respondent. It is therefore quite clear that the Appellant has not presented justifiable reasons for the delay in filing the present Application. The Appellant’s conduct in proceeding to tender his evidence and those of his witnesses and also receiving the evidence of the 1st and 2nd Respondent left no doubt that the present Application is an afterthought meant to scuttle the final determination of the petition before the trial court. I find the present Application has been filed quite late in the day and naturally ought to be declined. The Appellant is and was aware of the strict timelines in the determination of the Election Petition and therefore the present Application is but an abuse of the process of the court.

8. As regards the last issue I note that the gist of the Appellant’s appeal is based on the interpretation of Rule 15(2) of the Election (Parliamentary and County Elections) Petition Rules 2017. This is a point of law which can be canvassed on appeal. This being the only issue for determination by the Appellate court, I find that it is possible to fast track the said appeal and could even be canvassed within the period stipulated by the Elections Act 2011. Towards this end therefore the Appellant is directed to serve record of Appeal within 14 days upon the Respondent and thereafter parties to appear before the court within a week for direction on the disposal of the Appeal. The Deputy Registrar shall by then have put in motion admission process.

9. In the result it is the finding of this court that the Appellant’s Application dated 27/11/2017 lacks merit. The same is ordered dismissed with costs to the Respondents.

10. The Appellant is directed to serve record of appeal upon the Respondent’s within 14 days from the date hereof and to fix matter for directions within 7 days thereafter.

It is so ordered.

Dated, signed and delivered at Machakos this 6thday of December, 2017.

D. K. KEMEI

JUDGE

In the presence of:-

Hassan for Chailu for the Appellant

Miss Kioko for the 1st, 2nd and 3rd Respondents

Kituva - Court Assistant