[2017] KEHC 2264 (KLR)

IN THE HIGH COURT OF KENYA AT KISUMU

SIAYA ELECTION PETITION NO. 1 OF 2017

IN THE MATTER OF THE NATIONAL ASSEMBLY ELECTION FOR

UGENYA CONSTITUENCY

BETWEEN

DAVID OUMA OCHIENG…..………….....…..……PETITIONER

AND

THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION……..............1ST RESPONDENT

ISAIAH NABWAYO, THE RETURNING OFFICER UGENYA CONSTITUENCY............2ND RESPONDENT

CHRISTOPHER ODHIAMBO KARANI…......3RD RESPONDENT

RULING

Petitioner’s application

1. When this matter came up today for settlement of issues under Rule 15 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017(hereinafter referred to as the rules, today, Mr. Achach, learned counsel for the petitioner objected to the participation of the 3rd respondent in this proceedings.

2. Mr. Achach relied on Rule 11 of the Rules and this court’s order made on 16th November, 2017 that struck out the 3rd respondent’s response to petition.

1st and 2nd respondent’s submission

3. Ms. Odek, learned counsel for the 1st and 2nd respondents buttressed the petitioner’s objection and reiterated that the 3rd respondent was barred from appearing by virtue of Rule 11(8) of the Rules.

3rd respondent’s submission

4. Mr. Mugoye, learned counsel for the 3rd respondent submitted that the firm of Mugoye & Associates Advocates had been appointed by the 3rd respondent to act for him in this petition and that the said firm had accepted the instructions and filed a notice of appointment on 15th September, 2017.

5. It was submitted that the 3rd respondent did not cease to be a party to this petition upon the striking out of his response and that he should be allowed to test the veracity of evidence by the petitioner and his witnesses by way of cross-examination. It was further submitted that the 3rd respondent is a necessary party since it is his election that is disputed.

6. Mr. Mugoye furthers submitted that rule 11 (8) does not apply to the scenario in this case and that the court should be guided by Article 159 of the Constitution.

7. I have considered the oral submissions by counsels for the petitioner, for the 1st and 2nd respondents and for the 3rd respondent.

8. There is no dispute that the firm of Mugoye & Associates Advocates was appointed by the 3rd respondent to act for him in this petition and that the said firm accepted the instructions and filed a notice of appointment on 15th September, 2017.

9. The issue in question is whether the 3rd respondent should participate in the proceedings in this petition.

10. The court was urged to be guided by Article 159 (2) (d) of the Constitution in determining this application. In this court’s ruling delivered on 16th November, 2017, I quoted Nicholas Kiptoo Arap Korir Salat v IEBC &7 others [2014] eKLRwhere the court stated:

“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules.”

11. Appearance of a respondent in the proceedings of the petition is dealt with at Rule 11 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 which provides as follows:-

(8) A respondent who has not filed a response to a petition as required under this rule shall not be allowed to appear or act as a party in the proceedings of the petition.

12. I agree with the submission by 3rd respondent’s counsel that it the election of the 3rd respondent that is disputed but I have no doubt that the lawmakers in couching Rule 11 (8) of the Rules in mandatory terms were also alive to the fact that there are elected respondents who for one reason or another might not defend petitions filed against them.

13. The 3rd respondent’s response was struck out by this court’s order made on 16th November, 2017. By virtue of that ruling, the 3rd respondent reverted to the position of a respondent who has not filed a response and Rule 11 (8) of the Rules as cited by the petitioner and the 2nd and 3rd respondents is therefore applicable.

Orders

14. From the foregoing; the court makes the following orders:-

1. Rule 11 (8) of the rules which is coached in mandatory terms bars the 3rd respondent from participating in this petition, either by himself, or by counsel

2. Article 159 of the Constitution was not meant to aid in the overthrow or destruction of rules of procedure andcannot therefore be of any assistance to the 3rd respondent.

3. The objection by the petitioner as supported by the 1st and 2nd respondents is upheld

DATED AND DELIVERED THIS 21ST DAY OF NOVEMBER2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Petitioner - Mr. Achach instructed by the firm of Sagana, Biriq & Co. Advocates

1st & 2nd Respondents - Ms. Odek instructed by the firm of Ogenjo,Olendo & Co. Advocates

3rd respondent - Mr. Mugoye instructed by the firm of Mugoye & Associates Advocates