[2013] KEHC 108 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT KITALE.

ELECTION PETITION NO. 11 OF 2013.

CHARLES MAYWA CHEDOTUM

PHILEMON CHEPKWNY LOTUDO........................PETITIONERS.

VERSUS

I.E.B.C.............................................................1ST RESPONDENT.

PAUL CHEMUTTUT(SUED AS THE R.O.

KAPENGURIACONSTITUENCY.....................2ND RESPONDENT.

SAMUEL MOROTO CHUMEL........................3RD RESPONDENT.

R U L I N G.

This petition was filed on 10th April, 2013 by Charles Maywa Chedotum (herein first petitioner) and Philemon Chepkwony Lotudo (herein, second petitioner) against the Independent Electoral & Boundaries Commission (herein, first respondent), Paul Chemmuttut (herein, second respondent) and Samuel Moroto Chumel(herein, third respondent) seeking the court's intervention by way of:-

1. An order that there be a scrutiny and recount of the ballot papers used in the National Assembly election, Kapenguria Constituency and a scrutiny of the ballot papers used in the county assembly ward representatives, Kapenguria Constituency.

2. A declaration that the first and second respondents presided over a flawed and irregular election exercise at Kapenguria Constituency on 4th March, 2013.

3. A declaration that the first and second petitioners' rights as guaranteed under the constitution and the applicable law were violated by the apparent confusion in their names, placing of passport size photographs in wrong ballot papers and substitution of passport size photographs.

4. A declaration that the election of Kapenguria Constituency national Assembly s4eat was marred with illegalities, irregularities and procedural flaws so as to render the entire election of 4th March, 2013 at Kapenguria Constituency null and void.

5. A declaration that the third respondent was not validly elected as a member of National Assembly for Kapenguria Constituency.

6. An order compelling the first respondent to conduct a fresh but proper, free and fair election in Kapenguria Constituency, national Assembly seat that shall be presided over by impartial and competent officials devoid of the incurable defects subject of this petition.

7. An order that costs of this petition shall be borne by the respondent jointly and severally.

And that:-

8. Any other relief that this Honourable court may deem fit and just and appropriate to grant.

The petition was filed by Millimo Muthoni & Co. Advocates on behalf of both petitioners and served upon the respondents. Accordingly, the first and second respondents entered appearance through Messrs Z.K. Yego & Co. Advocates and Messrs. Gumbo & Associates Advocates. The third respondent entered appearance through Messrs Barongo & Co. Advocates.

The petition is therefore ready for a pre-trial conference. However, there is an intervening factor by way of the present application dated 8th May, 2013 by the first and second respondents for the basic order that the petition be dismissed and that the cost of the application and the petition be borne by the petitioners.

Undoubtedly, this is an application capable of having drastic consequences to the entire petition and must therefore be considered with a lot of care without compromising the clear provisions of the electoral laws (i.e. the Election Act 2011 and the Rules made thereunder) which must however be read in tandem with the provisions of the Kenya Constitution 2010 with regard to rights arising from the election process and matters incidental thereto. The application is made under Section 78 of the Elections Act and Rule 11 of the Election Petitions (Parliamentary and County Elections)Rules – on grounds that:-

i. The petition was filed on 10th April, 2013.

ii. The petitioners are mandated under Section 78 of the Elections Act to deposit Ksh. 500,000/= each in court as security for payment of costs within 10 days from the date of filing the petition.

iii. It is now over 30 days since the petition was filed yet the petitioners have failed to deposit the mandatory sum of Ksh. 500,000/= each being security for payments of costs.

iv. The petition is a gross abuse of the court process.

v. The petition is made in bad faith and is full of mischief.

vi. In the interest of justice this application ought to be allowed.

vii. It is fair, just and expedient that the petition be dismissed.

There is an affidavit in support of the application dated 8th May, 2013 and deposed by Mr. Yego, learned counsel for the first and second respondents. It was Mr. Yego himself who argued the application on behalf of the first and second respondents and in doing so, he relied on the authorities in his list of authorities filed herein on 22nd May, 2013.

The petitioners filed a replying affidavit dated 20th May, 2013 in response to the application. Their case in opposition to the application was argued by the learned counsel, Mr. Millimo.

The third respondent did not file any response but through his advocate, Mr. Barongo, supported the application.

Basically, the thrust of the first and second respondents arguments as understood by this court is that the petitioners flouted the clear and mandatory provisions of section 78 of the Elections Act (hereinafter to be referred as the “Act”) by firstly, depositing security outside the prescribed period and secondly, by depositing inadequate security considering that there are two petitioners herein and Section 78 (2) of the Act presupposes that each petitioner was required to deposit a sum of Ksh. 500,000/= thereby coming to a total deposit of Ksh. 1 million.

It was contended by the applicants (i.e. first and second respondents) that the prescribed ten (10) days period was reasonable in allowing a party to access justice pursuant to Article 48 of the Constitution and was also meant to show an appreciation of Article 159 (2) (e) of the Constitution.

According to the applicants, the rationale for depositing security was to ensure that access to justice is regulated and that the courts are insulated against abuse of the court process by all manner of petitions since every voter has a right to come to court and in Kapenguria the number of voters exceed fifty thousands (50,000). The applicants, contended that election petitions are special proceedings and hence, Section 78 of the Act is couched in mandatory terms thereby becoming the “heart and soul” of an election petition. Further, if the provision was not intended to be mandatory, then section 78 (3) of the Act which gives way to dismissal of a petition would not have been included.

The applicants contended that a petitioner would not be prejudiced by the deposit of Ksh. 500,000/= as it is not filing fees but a security held by the court until the conclusion of the petition within a period of six (6) months.

The applicants submitted that from the time of the declaration of the election results on 6th March, 2013, the gazettment of the results on 13th march, 2013 upto the time given for the filing of the petition (i.e. 28 days), the petitioners had about thirty five (35) days, to file the petition and do any other act including payment of deposit within ten (10) days.

In response to the petitioners' replying affidavit, the applicants submitted that depletion of the petitioners' funds due to campaigns was not an excuse and that the deposit of Ksh. 500,000/= made by the petitioners was not only paid out of time (i.e. nineteen (19) days after the filing of the petition) but was also insufficient.

It was the applicants' contention that Section 78 (1) and (2) of the Act refer to a petitioner in singular terms and does not refer to the petition itself. Further, each of the two petitioners was a candidate in the disputed election to such extent that the first petitioner was declared the second winner while the second petitioner was declared the third winner. Yet, the two have decided to file one petition thereby demonstrating a mischief which parliament intended to cure by providing that a petitioner shall deposit security in the sum of Ksh. 500,000/=.

The applicants emphasized that extension of time to deposit security was never accepted and that where there was no deposit a petition should be rejected. In that regard, the applicants drew the attention of this court to their authorities No. 3 and 5 in their list of authorities (i.e. Charan Lal Shah Vs. Nandi Kishore Bhatt & Another (1973) ALR 267 1974 SCR (1) 294 (Indian Case) And Esposito Franco Vs. Amason Kingi Jeffah & Others C/Appeal No. 248 of 2008. )

The applicants raised issue with the fact6 that the second petitioner did not file a replying affidavit yet he is also a petitioner and contended that separate petitions ought to have been filed by each of the two petitioners who would thereafter have applied for the consolidation of the same but as it is now, the petitioners are co-joined like “siamese twins” such that if one of the twins dies, the other must also die.

With regard to Rule 20 of the Election Petition Rules (herein, “the Rules”), the applicants contended that the provision is not applicable to payment of deposit under section 78 of the Act. In that regard, authority No. 2 in the applicants' list of authorities was relied upon (i.e. Kakumbi Abdul vs. Kabanjo James Kyewalabwe & Another Kampala High Court Misc. App. No. 133 of 2011 (Ugandan Case.)

It is for all the foregoing reasons that the applicant beseech this court to dismiss this petition with costs.

As for the petitioners, it was argued that the issue pertaining to the late deposit of security was not part of the application and therefore, its introduction by the applicants amounted to an ambush. Consequently, the issue ought not be given any consideration by this court.

The petitioners contended that the application is frivolous, a red-hearing and diversionary in nature made with a view to removing the court from giving consideration to the substance of the petition and instead dwell on technicality thereby reflecting the old school of thought where technicality took precedent over substance such that issues presented before the court were never determined on merits.

The petitioners submitted that with the promulgation of the new current constitution in the year 2010, a Constitutional duty was imposed upon the courts under Article 159 (2) (d) of the Constitution to determine issues on substance and merit and not technicalities. Therefore, if this petition were to be disposed off, on the basis of technicalities, then this would be elevating rules above constitutional substance and lead to thousands of Kapenguria voters being denied their right to access justice.

It was the petitioners' contention that this petition was presented in compliance with the Rule of law and it would not therefore be the purpose of this court to deny litigants the opportunity to be heard on merits since judicial authority is derived from the people and is donated to the courts to be exercised in accordance with the Constitution. Therefore, the court is under a duty to observe the cardinal principle of the right to access justice such that restricting matters to technicalities would go against the principle. The petitioners contended that any application hindering or obstructing access to justice is an affront to the Constitution and this being the position herein, the court has a duty under Article 159 (2) (e) of the Constitution to protect the intent and purpose of the Constitution and would be failing in doing so if the present application seeking to elevate the Election Act above the Constitution is allowed.

In the petitioner's view, the only issue for determination in this matter is whether, an election petition filed by more than one petitioner attracts a security of Ksh. 500,000/= for each petitioner now that Section 78 (2) (b) of the Act is cited as the authority to that effect. The petitioners submitted that the present application is based on a misapprehension of the law as the Act does not state anywhere that each petitioner in an election petition relating to a member of parliament must deposit the sum of Ksh. 500,000/=.

The petitioners contended that Section 78 (2) (b) of the Act refers to Ksh. 500,000/= in the case of a petition. That, the operating words are “in the case of a petition” which should be constructed to mean just what they mean i.e. a petition and not each petitioner.

The petitioners submitted that before this court is a petition as defined by section 2 of the Act and filed in accordance with the Constitution such that it was given the number 11 of 2013 by this court for which a deposit of Ksh. 500,000/= was required and paid as per section 78 (2) (b) of the Act. The petitioners contended that if parliament had intended that a petition filed by more than one person ought to attract a security of Ksh. 500,000/= in equal measure, then the intention would have been expressly stated.

It was the petitioner's submission that this court has a duty to interpret section 78 (2) (b) of the Act in such a manner as not to restrict the purpose thereof and that to impose words to the effect that each petitioner must deposit Ksh. 500,000/= will be punitive to the petitioners and impede the course of justice.

The petitioners contended that the word “person” in Section 78 (2) (b) of the Act ought not be confined to mean one petitioner even though it appears in a singular form. Instead, the word ought to be construed to mean more than one person as and when the context so requires.

The petitioners referred to section 3 of the Interpretation and General Provisions Act (Cap 2 LOK) and submitted that the word person includes a company, association, a body of persons corporate or non-corporate while herein a group of petitioners have enjoined themselves to present this petition. Therefore the law should be read to include both petitioners as presented in this petition.

The petitioners suggested that this court should recommend to parliament to amend Section 78 of the Act so that the words a petitioner or a person as used singularly are read in plural.

The petitioners also suggested that a Constitutional declaration be made by this court regarding the words “a petitioner”and “a person” in order to avoid any ambiguity in interpretation.

It was the petitioners' contention that since there is nowhere in the Act saying that an election petition should be presented by one person and not two, the court canno0t be asked to bar what is not barred.

Further, the word “Petitioners” is expressly stated in Rules 26 (5), 27 and 28 of the rules which therefore envisaged the possibility of there being more than one petitioner in an election petition.

The petitioners submitted that in ordinary suits a plaint may be presented by a group of persons who would not be required to individually and independently pay for the filing fees which are paid in respect of the suit and not the number of the parties in the suit.

The petitioners contended that the same positions would apply to costs such that if there are more than one party, costs are payable jointly or severally as the court may order.

The petitioners submitted that they have paid the required deposit and that their cause of action relates to the election the subject of the petition. Further, any person can petition an election court in order to challenge an election held in a specific place and period. Similarly, any person can be enjoined as a co-petitioner since such enjoinment would not constitute a new cause of action.

The petitioners submitted that since a petitioner does not own a petition, any deponent of an affidavit becomes a witness such that even if a petitioner withdraws from the petition, any other person may apply to be substituted as a petitioner and prosecute the petition. Further, in this application, the replying affidavit deponed by the first petitioner suffices for the purposes of the issues raised herein. Therefore, the number of petitioners should not be a factor in considering the amount payable as security. As a result, this application is misconceived and should be dismissed.

The petitioners have taken the view that this petition is not beyond redemption as the court may order that each party deposit the security and if necessary, there may be an amendment of the petition so that the name of the second petition is deleted.

With regard to the payment of the deposit out of time, the petitioners submitted that the Constitution does not impose conditions on any aggrieved party. Hence, the Constitution does not clog the right to have an election dispute resolved. Therefore, any law purporting to clog that right such as Section 78 of the Act would be unconstitutional as the right to a free and fair election is guaranteed by Article 38 (2) of the Constitution and herein, the petitioners have come to court seeking to challenge the validity of the election held in Kapenguria.

The petitioners submitted that the court should adopt a purposeful approach in interpreting section 78 (2) and (3) of the Act so that the scope and purpose of the legislation read together with the Constitution is not defeated.

It was the petitioners contention that the purpose of security is to compensate the respondent for the trouble and inconvenience caused in the event that a petition is dismissed after a full hearing. Herein, the security has already been deposited, the respondents/applicants have not and will not suffer any prejudice. Therefore, the dismissal of the petition on account of belated payment of deposit for costs would be to demean the Constitution. In any event Section 78 (3) of the Act contemplates a failure to deposit security and not the late payment of security.

The petitioners therefore contended that even where there is none payment of the deposit, the petition would not abate but be stayed until the security is deposited and in case of failure to make the deposit, the respondent would apply for dismissal.

The petitioners submitted that Rule 20 of the Rules allows the court to extend time for payment of security and therefore, the deposit already made herein may be deemed as having been properly made. It was further contended by the petitioners that the time lines set by Article 87 of the Constitution do not include deposit of security and that the authorities cited herein by the applicants have since been overtaken by the new laws and are no longer applicable.

The petitioners raised issue with paragraph six (6) of the applicants' supporting affidavit and contended that the averments contained therein are matters of controversy and ought not have been raised by an advocate. Therefore, the entire supporting affidavit is incompetent and should be struck out.

From all the affidavits and submissions for and against the application, it is apparent that the issues falling for determination are two fold viz:-

(a) Whether an election petition filed by more than one petitioner imposes upon each of the petitioners the obligation to separately deposit security in terms of section 78 (2) (b) of the Elections Act read together with Rule 11 (1) of the Elections Petition Rules.

(b) Whether the deposit made herein by the petitioners was made outside the prescribed period of ten (10) days and if so, whether the petition was rendered incompetent and incurably defective as a result thereof.

Before dwelling on the said issues, the Court observes as follows:-

The issues raised by the application relate to adequacy of the security already deposited by the petitioners and the time within which the security was deposited. The grounds in support of the application as fortified by the averments in both the supporting and replying affidavits allude to those issues. It was not therefore correct for the petitioners to allege that they were ambushed by the applicants/respondents in relation to the issue of time within which the petitioner's deposited Ksh. 500,000/= as security for costs.

However, with regard to paragraph six (6) of the applicants' supporting affidavit, it was improper for the applicants learned counsel to depone on matters which are “prima-facie” scandalous and contentious and may require proof which may not be offered by the advocate. It mattered not what the applicants felt about the exercise of a legal right by the petitioners', allegations of the nature made in paragraph six (6) of the supporting affidavit would only serve to ridicule and demean another especially if there is no proof to establish the same. Such allegations ought to be avoided as much as possible. Therefore, it would be within the province of this court to disregard the said allegations and in effect strike out paragraph six (6) of the supporting affidavit without necessarily striking out the entire affidavit. Accordingly, the said paragraph six (6) be and is hereby struck out.

With regard to the petitioners' replying affidavit, it is true that it was deponed only by the first petitioner who did not indicate that he was doi8ng so on behalf of the second petitioner. However, the affidavit touches on relevant issues raised in this application and there would be no prejudice suffered by the respondents if it is relied upon by both petitioners to defend the application. It is harmless and consequently, good enough for the purposes of the application. Any defects that may accrue from it would not be fatal to the petitioners' case thereby giving the applicants a smooth sail in the application and indeed, the petition.

Be that as it may, the jurisdiction to hear and determine election petitions such as the present one is a special jurisdiction conferred to the High Court by the Constitution. It is therefore presupposed that the Elections Act and the Rules made thereunder form a complete legal regime with its elaborate procedures containing the filing, serving, hearing and determination of the election petitions. Therefore, the provisions of the Civil Procedure Act and rules made thereunder would not be expected to apply in election petitions save where expressly incorporated (see, David W. Murathe vs. Samuel Macharia C/APP. No. 171 of 1998. )

Pursuant to Article 87 (1) of the Constitution, power was donated to parliament to enact legislation which would establish mechanisms for timely setting of electoral disputes. On that score, parliament exercised its mandate and came up with the Elections Act No. 24 of 2011 which is an

“Act of Parliament to provide for the conduct ofelections to the office of the president, the NationalAssembly, the senate, county governor and countyassembly; to provide for the conduct of referenda;to provide for election dispute resolution and forconnected purposes.”

The Elections (Parliamentary and County Elections) Petition Rules 2013 were crafted under the Elections Act 2011. The Rules apply to parliamentary elections such as the elections subject of this petition with an overriding objective to facilitate the just, expeditious, proportionate and affordable resolution of elections petitions under the Constitution and the Act.

Invariably, election disputes have to be resolved by adherence to the provisions of the Constitution and the Elections Act together with the Rules made thereunder.

However, in the exercise of its power under the Constitution and the Act or in the interpretation of any of the provisions in the Rules, the court must seek to give effect to the overriding objective specified in Rule 4 (1) and (2) of the Rules and for purposes of furthering the objective, the courts and all the parties before it must conduct the proceedings for the purpose of attaining the following aims:-

(a) The just determination of the proceedings and

(b) The efficient and expeditious disposal of the petition and in any case not beyond the timelines provided in the Constitution and the Act with respect to election petitions.

Apparently, the present regime of electoral rules is in consonance with the Constitution and indeed the Elections Act unlike the former regime which it was generally agreed focused on procedural technicalities at the expense of substantive justice.

It is instructive to note that the current trend is to move away from technicality and focus on substance.

However, this is not an absolute adventure as Article 159 (2) (d) of the Constitution stipulates that justice shall be administered without undue regard to procedural technicalities (emphasize added).

Indeed, in the case of Raila Odinga vs. I.E.B.C. & others (2013) eKLR, the Supreme Court held that:-

“Article 159 (2) (d) of the Constitution simply means that a Court of Law should not pay undue attentionto procedural requirements at the expense ofsubstantive justice. It was never meant to oustthe obligation of litigants to comply with proceduralimperatives as they seek justice from the court.”

The operating words in Article 159 (2) (d) are “undue regard”. In plain English, undue means more than what one may think is reasonable or necessary. It is this court's view that Article 159 (2) (d) of the Constitution ought to be interpreted in plain language with a purposeful approach. It should not be overstretched to the extent that any obligation imposed by the law with regard to procedure becomes a mere insignificant technicality. Haphazard application of the Article would open the field of justice to gross abuse. The Article was not intended to be a “coup d'etat”of procedural rules which are created and exist for the purposes of ensuring an orderly and efficient system of the management and administration of justice.

After all, it has been repeatedly stated that procedural rules are the handmaidens of justice.

It is trite law that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed (see, The Speaker of the National Assembly vs. Karume (2008) IKLR 426).

In the case of Chelashaw vs. Attorney General & Another (2005) IEA 33, it was held that without rules of practice and procedure the application and enforcement of the law and the administration of justice would be chaotic and impossible and their absence or non-adherence would lead to uncertainty of the law and total confusion since the laws serve a purpose and they enhance the rule of law.

Quite clearly, Article 159 (2) (d) of the Constitution was not invented as a panacea for the indolence and the lack of due diligence often displayed by some litigants in preparation of their cases.

The Bill of Rights comprising chapter 4 of the Constitution provides that every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the Will of the election for “inter-alia” any elective public body or office established under the Constitution, (see, Article 38 (2) of the Constitution).

This petition is an exercise by the petitioners of their right to free and fair elections. Such, is a fundamental right which along with the right to access justice (see, Article 48 of the Constitution) ought to be interpreted in a broad and liberal manner so as not to be defeated by provisions of the law found in statutes such as the Elections Act 2011.

Undoubtedly, the Constitution is the Supreme Law. It exists separately and is not an Act of Parliament. Its provisions ought to be interpreted broadly, liberally and not in a restrictive manner. The provisions must be read to give value and aspiration of the people. Indeed the Constitution is a living document with its own principles and values (see, Re-Kadhis Court Case NBI HCMICA NO. 890 of 2004. )

A constitutional provisions containing a fundamental right is regarded as a permanent provision intended to cater for existing and future time. Therefore, the approach in interpreting such provision should not only be liberal but also progressive and flexible.

From foregoing observations we now have a glimpse of where the present application is coming from and where it is headed. It has been made clear that the current Constitutional dispensation will play a major and significant role in shaping the existing and future electoral laws with a view to making them constitutionally compliant in all aspects.

Turning to the issues identified hereinabove for determination and with regard to the first issue as to whether an election petition filed by more than one petitioner imposes upon each of the petitioners the obligation to separately deposit security, the opinion of this court is that parliament in enacting Section 78 (1) (b) and Section 78 (2) of the Elections Act did not intend to block any person from accessing justice by the requirement that a petitioner deposits a sum of Ksh. 500,000/= in an election petition. If that were the case, then the values and principles embodied in the Constitution would be meaningless, but we all know that the Constitution is the Supreme law and well above an ordinary Act of Parliament. Therefore, this court is inclined to interpret the words “a petitioner”as appears in Section 78 (1) of the Elections Act and the word “a person”as appears in Section 78 (2) of the Elections Act to mean “a petitioner” or “a person” in plural rather than singular terms. It would be too restrictive to apply the said provisions in singular terms as doing so will have the repercussion of blocking persons who have a common cause to jointly approach the courts with a view to minimizing costs. The deposit required under Section 78 (2) (b) of the Act relates more to the petition rather than the person or persons filing the same in court.

Bearing in mind that we are herein talking about one petition filed by two people it would only be reasonable, sensible and proper to interpret the words “a petitioner” and “a person” as meaning either one person or more than one person.

In any event, nothing in the Elections Act forbids two or more people coming together and jointly petitioning the court in exercise of their Constitutional rights. The Election Act does not also define the words “a petitioner”or “a person”.

It is instructive to note that the deposit is a security for costs and costs are used as a device to discourage unnecessary litigation on the basis of the “loser pay” principle which helps in offloading the burden of expenses incurred in prosecuting or defending a case and therefore makes the endevour to safeguard one's rights worthwhile.

On the other hand, the “loser pay” principle would act as a great barrier with regard to litigation on matters concerning fundamental rights such as access to justice. A party may for fear of costs for security or otherwise be impeded from attempting to enforce his or her constitutional rights.

For all the foregoing reasons, this court holds that the words “a petitioner” and “a person”as used in Section 78 (1) and (2) of the Elections Act are interpretable in plural terms. Consequently, it is the finding of this court that the sum of Ksh. 500,000/= deposited as security for costs by the petitioners was sufficient in terms of section 78 (2) (b) of the Elections Act.

The fact that both petitioners were candidates in the disputed election is not a legal bar to their filing a single petition so long as they have a common cause and their intention was to team up in order to mitigate against the costs that may be awarded to the respondents if the petition fails.

Ideally, they ought to have filed separate petitions and applied for consolidation of the same. Nevertheless, there was no bar to their teaming up which was a great pointer to their lack of adequate finances to present separate petitions. Poverty should not be a handicap in accessing justice.

In sum, the answer with regard to this first issue for determination is in the negative.

With regard to second issue for determination as to whether the deposit made herein was outside the prescribed period of ten (10) days thereby rendering the petition incompetent and incurably defective, it is evident that the petition was filed or presented on the 10th April, 2013 and the deposit for costs was paid on 29th April, 2013. Clearly, the payment of the deposit outside the prescribed time was contrary to the mandatory requirement of Section 78 (1) of the Elections Act and Rule 11 (1) of the Elections Petitions Rules.

It was therefore incumbent upon the petitioners to move the court for extension of time within which to pay the deposit and have the deposit already paid treated as having been properly paid. They did not. The petitioners allowed themselves to come face to face with the provisions of Section 78 (3) of the Elections Act which provides that:-

“Where a petitioner does not deposit security asrequired by this section, or if an objection is allowedand not removed, no further proceedings shall beheard on the petition and the respondent may apply tothe election court for an order to dismiss the petitionand for the payment of the respondent's costs”.

Belated payment of deposit may be regarded as non-payment of deposit unless the position is regularized by way of necessary application for extension of time.

Apparently, it is partly due to the petitioner's indolence that the first and second respondents have by this application moved the court to strike out the petition for payment of deposit outside time.

Under Section 78 (1) of the elections Act, the payment of deposit is mandatory and therefore a matter of law and not mere technicality.

The main reason given by the petitioners for failure to pay the deposit within time was financial constraints. This is not a convincing reason and may be an afterthought considering that the petitioners have not yet deemed it fit to move the court for an extension of time which is permissable under Rule 20 of the Elections Rules which provides that:-

“Where any matter is to be done within such time as provided for in these Rules or granted by the court,the court may, for purposes of ensuring that noinjustice is done to any party, extend the time withinwhich the thing shall be done with such conditionsas it may think fit even though the period originallyprovided or granted may have expired”.

This Rule gives the court discretion to extend time for anything which is to be done under the Rules and by extension the Elections Act under which the Rules are made.

Rule 11 (1) of the Rules, imposes an obligation to a petitioner to deposit security as provided for under Section 78 of the Act. What is to be done under Section 78 of the Act with regard to security is exported to the Rules by dint of Rule 11 (1) of the rules. Therefore, any act to be done ought not be restricted to the Rules but should also be extended to the Act. In any event, the Rules are founded more or less on the legal principles embodied in the Act which is the substantive law applicable to election disputes. The Rules basically provide for the modalities to resolve the disputes in a just, expeditious, proportionate and affordable manner.

Thus, Rule 20 of the Rules creates an avenue for extension of time within which to deposit security. The words therein pre-suppose that necessary application be made by the party who desires extension of time or that time be extended by the court on its own motion if it would be just to do so.

Herein, the petitioners are yet to move the court for extension of time. It seems that they are gambling on the Court exercising discretion on its own motion. Be that as it may, much as the petitioners delayed in depositing security, the fact that they eventually did so was a demonstration of their determination to pursue their Constitutional rights by way of intervention of the court. In any case, they are still at liberty to make the necessary application for extension of time. However, to save the precious judicial time and so that justice may be done and be seen to be done by the hearing of this petition on the merits, this court on its own motion now extends the time within which security is to be deposited and in that regard, the security already deposited be and is hereby deemed to have been properly and lawfully deposited.

In sum, the failure by the petitioners to deposit the security within the prescribed time did not render the petition incompetent and/or incurably defective.

This application must therefore fail in its entirety. However, due to the indolence and lack of due diligence by the petitioners in depositing the security belatedly and therefore prompting the application, they shall bear the first and second respondent's costs for the application. The third respondent did not file any response to the application and rode on the back of the first and second respondents. He shall bear his own costs of the application.

Ordered accordingly.

[Read and signed this 4th day of June 2013. ]

J.R. KARANJA.

JUDGE.