[2017] KEHC 2704 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

ELECTION PETITION NO.9 OF 2017

DAVID WAMATSI OMUSOTSI.............................................................................PETITIONER

VERSUS

THE RETURNING OFFICER MUMIAS EAST CONSTITUENCY..............1ST RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION.......2ND RESPONDENT

BENJAMIN WASHIALI JOMO..................................................................3RD RESPONDENT

RULING

Introduction:

1. The petitioner herein was running for the seat of Member of Parliament for Mumias East Constituency in the August 2017 General elections that were conducted by the Independent Electoral and Boundaries Commission, the 2nd respondent herein. The 1st respondent was the returning officer for the constituency. The 3rd respondent is the one who was declared by the 1st respondent as the duly elected Member of Parliament for Mumias East constituency after the tallying of results.

2. The petitioner was dissatisfied with the manner the election was conducted and filed this petition. The petition was supported by his own affidavit and the affidavits of six people whom he intended to call as witnesses.

3. The 1st and the 2nd respondents have filed a notice of motion dated 25th September, 2017 seeking for orders that:-

1. This honourable court be pleased to strike out the petition.

2. In the alternative, the honourable court be pleased strike out the supporting affidavit of the petitioner and the affidavits of his six proposed witnesses.

The application is premised on the grounds set out on the face thereof and is supported by the affidavit of the 1st respondent.

4. The 3rd respondent on his part has filed a separate application dated the 10th October, 2017 also seeking to strike out the petition and to strike out the affidavit in support of the petition. The application is premised on similar grounds to that of the 1st and 2nd respondents.

The applications were argued together as they were raising similar grounds.

Both applications were opposed by the petitioner.

Grounds to the applications:-

5. The respondents are contending that the petition is incurably defective in that it is supported by defective affidavits. That the affidavits of the petitioner and those of his proposed witnesses were sworn contrary to the provisions of the Oaths and Statutory Declarations Act, Cap 15 Laws of Kenya. That the affidavits were commissioned by “Kiget & Company Advocates” which is contrary to the manner of commissioning affidavits. Further that the stamp used to seal the affidavits and the signatures thereof are admittedly forgeries. Therefore that the documents are not affidavits but mere forgeries. Therefore that there is no affidavit in support of the petition as required by rule 8 of the Elections (Parliamentary and County) Petitions Elections Rules, 2017. That there are no affidavits of witnesses as required by rule 12 of the election rules. That a petition cannot stand without the supporting affidavit of the petitioner and affidavits of proposed witnesses.

6. Further that the affidavits of the petitioner’s proposed witnesses are annexed to the affidavit of the petitioner which means that they are not independent affidavits as required by the law. Therefore that the supporting affidavit of the petitioner and the affidavits of his proposed witnesses should be struck out.

The Response by the petitioner:-

7. The petitioner admits that the affidavits are defective. He explains that after the petition and the affidavits were prepared and were ready for commissioning, their friend advocate Nigel Kundu gave them a lady by name Christine Atieno to take them to a commissioner for oaths for commissioning. That the lady took them to a certain office. She told them to wait as she confirmed whether the advocate was there. That after some time she came out from the office with fully stamped ad signed affidavits that they proceeded to file in court. That after questions were raised as to their authenticity, his advocates followed up the issue with the lady but she became evasive. That his advocates went to look for the advocate in Eldoret. The advocate examined the stamp impressions and the signatures on the affidavits and told them that they were forgeries. That the advocate reported the matter to the police at Eldoret vide OB No.54/6/10/17.

8. The petitioner says that the mistake was outside his capacity to know and that he should not be punished for mistakes that are not his. He seeks that the court grants him leave to file fresh affidavits.

Submissions by Advocates for Respondents:-

9. The advocate for the 1st and 2nd respondents Mr Masika, submitted that the petition does not comply with the provisions of Rules 8 and 12 of the Elections (Parliamentary and County Elections) Petitions Rules 2017 (herein the election rules). That the petition does not state the results of the election as required by the rules. That the petition is not supported by any affidavit commissioned by a Commissioner for Oaths. That the affidavits of proposed witnesses are not commissioned. That the supporting affidavit of the petitioner and those of his witnesses are commissioned by an entire law firm described as Kiget & Co. Advocates. That this is contrary to the provisions of the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya as only a person duly qualified as an advocate can commission affidavits and not a law firm. Therefore that the purported affidavits are not affidavits within the meaning of the law. To buttress this submission, the advocate cited the case of Rajput vs Barclays Bank of Kenya Limited & 3 others(2004) KLR where Emukule J (as he then was) held that failure to comply with the provisions of the Oaths and Statutory Declarations Act and the rules made there-under is a matter of substance and not form and is not curable.

10. The advocates also cited the case of Ismael Suleiman & others vs Returning Officer, Isiolo County & 4 others (2013) KLR where Makau J dismissed a petition where the supporting affidavits were not commissioned as required under the Oaths and Statutory Declarations Act.

11. The advocate further submitted that the affidavits of the witnesses are defective in that they are annexed to the affidavit of the petitioner which means that they are not independent affidavits on their own. That the affidavits of the witnesses are thereby of little probative value and should thereby be struck out. The advocate cited the case of Odinga & 5 others vs Independent Electoral & Boundaries Commission & 4 others (2013) eKLR where the petitioner had annexed affidavits of witnesses to his petition and the Supreme Court struck them out on the grounds that they were not independent affidavits that could stand on their own.

12. The advocate also cited the case of Cultivate Technologies Ltd vs Siaya Cotton Farmers Co-operative Union (2004) KLR 693 where a plain paper was attached to the documents and the paper was sealed and executed by a Commissioner for Oaths. Sergon J ruled that the documents were not properly commissioned and were struck out and expunged from the record.

13. On his part Mr Nyamu for the 3rd respondent associated himself with the submissions of Mr Masika and added that the affidavits are admittedly defective. That that leaves the petition devoid of affidavits to support it. That there is then no petition before the court as a petition has to be supported by affidavits. That the petition cannot thereby stand.

14. He submitted that Article 87(4) of the Constitution requires a petition against a Member of Parliament to be filed within 28 days after declaration of results. That as there were no affidavits filed with the petition, there was no petition filed.

15. That the petitioner has not moved the court to substitute the defective affidavits. That it is an abuse of the process of the court for a party to move the court by way of affirments in an affidavit in response .

Submissions by the advocate for petitioner:

16. The advocate for the petitioner, Mr Munoko, admitted that the affidavits are defective but submitted that a petition should not be defeated on technicalities. That the court should take a liberal view on petitions and look at the substance contained in the affidavits notwithstanding the defects. That Article 159(2)(d) of the Constitution require courts of law to administer justice without undue regard to technicalities. That the same principle is stated by section 80(1)(d) of the Elections Act 2011.

17. The advocate submitted that an election petition is a matter of public interest and that courts of law should exercise caution in any application that seeks to curtail a petition on technical grounds. The advocates cited the Ugandan case of Nakukeera Hussein Hanifa vs Kibuule Ronald & Another Petition No.7 of 2011 where the name of the person before whom the oath was taken was not disclosed in the affidavit. The Judge in the case held that the defects complained of were curable and that petitions are matters of public interest which should be considered liberally.

18. The advocate submitted that the question is whether striking out of petition is the best option available. He submitted that it will be harsh to strike out the affidavits without remedy. That the respondents have not told the court what prejudice they will suffer. That the petitioner will be prejudiced by such striking out as his constitutional rights will be infringed. That the rights of the people of Mumias East to know what happened on the polling day will be curtailed. That the court should rise above technicalities. The advocates distinguished the striking out of the affidavits in the Raila case (supra) on the basis that the petitioner had filed a large number of affidavits without leave of the court yet the Supreme Court had limited time to hear and determine the petition. That in this case the court has sufficient time to hear the petition. That the court can grant leave to the petitioner to rectify the error and file fresh affidavits.

19. The advocate cited the case of Deepak Chamanlal Kamani & Another vs Kenya Anti-corruption Commission & 3 others(2010) eKLR where the respondent had not complied with the rules of the court to attach the judges notes to the appeal. The Court of Appeal invoked the overriding objective of civil litigation contained in section 3A and 3B of the Appellate Jurisdiction Act Cap 9 Laws of Kenya which is to facilitate the just, expeditious, proportionate and affordable resolution of the appeals governed by the Act. The court held that if a way or ways alternative to a striking out are available, the courts must consider those alternatives and see if they are more consonant with the overriding objective than a striking out. It further held that the court ought to be guided by a broad sense of justice and fairness as it applies the overriding objectives.

20. The advocate also cited the case of Eng. Peter Kimori Maraga, Kisii Election Petition No.7 of 2013 where Muriithi J held that a petitioner’s affidavit is not an integral part of the petition and that striking out of the affidavit is not fatal to the petition. In the case, the judge after striking out the affidavits, granted leave for filing of fresh affidavits.

21. In reply to the submissions by Mr Munoko,Mr Masiga states that what they are raising are not points on technicalities but non-compliance with the law. Mr Nyamu stated that Article 159(2)(d) cannot be relied upon to oust rules of procedure.

ANALYSIS AND DETERMINATION:

22. The questions for determination are:-

(1) Whether the provisions of rules 8 and 12 of the elections rules are mandatory .

(2) Whether the petition is incurably defective.

(3) Whether the court has discretion to allow the petitioner to file fresh affidavits in support of the petition.

23. The grounds of the application are twofold – first that the affidavits in support of the application have not been commissioned by a commissioner for oaths and are forgeries and secondly that the affidavits of the proposed witnesses are not independent evidence on their own as they are put in as annextures to the affidavit of the petitioner.

(1) The uncommissioned documents;-

24. Under section 2(1) of the Oaths and Statutory Declarations Act, Cap 15 Laws of Kenya, only persons practicing as advocates can be appointed as Commissioners for Oaths. The section states that:-

“The Chief Justice may, by Commission signed by him, appoint persons being practicing advocates to be Commissioners for Oaths, and may revoke such appointment.”

25. Section 4(1) states that:-

“A Commissioner for Oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya …...”

26. It is clear from the provisions of the said Act that affidavits cannot be commissioned by a firm of advocates as happened in this case. An affidavit can only be commissioned by a Commissioner for Oaths and other officials of the court allowed to do so under the Act. In this petition the signatures of the person who was said to have commissioned the affidavits are forgeries. The stamp impressions on the affidavits are forgeries. The totality of all this is that the documents are not affidavits as known in law. They are mere forged documents.

(2) The annexed documents:-

27. The so called affidavits of witnesses are annexed to the so called affidavit of the petitioner. The question is whether these annextures are affidavits for the purposes of an election petition.

Rules 12(3) and (4) of the elections rules require each of the persons whom the petitioner intends to call as a witness, to swear an affidavit to be filed with the petition. According to Rule 12(12) such affidavits form part of the record of the hearing and may be deemed to be the deponent’s evidence for the purposes of cross-examination. Rule 8 states that a witness shall not give evidence (except with leave of the court) unless the witness has sworn an affidavit.

28. The annextures in question can only be considered as the evidence of the deponent, in this case, the evidence of the petitioner and not the evidence of the people mentioned in the affidavit of the petitioner. The people mentioned were supposed to swear their own independent affidavits to make their evidence independent of the evidence of the petitioner. What is contained in the evidence of the petitioner is not their evidence. They cannot be cross-examined on the evidence of the petitioner. There are thereby no affidavits in record that can form the basis of the evidence of witnesses for the petitioner. The petition has no witnesses. In Odinga and 5 others vs Independent Electoral and Boundaries Commission & 4 others (2013) KLR the Supreme Court expunged from the record such affidavits which were put in as annextures of the petitioner. The court stated that:-

“The petitioner has used an unusual way of availing affidavits as annextures or evidence as there were various further affidavits filed through the affidavit in reply which were not independent affidavits filed to stand on their own as evidence in the particular proceedings. Such affidavits evaded payment of the filing fees and their probative value was questionable. The affidavits and the supporting affidavit of the petitioner are not commissioned. The affidavits are thereby struck out and expunged from the record.”

29. In this case the annexed affidavits are not independent supporting evidence. They could only remain in record as evidence of the petitioner. However the documents are not commissioned by a Commissioner for Oaths. The documents deserve to be struck out.

In the foregoing the supporting affidavit of the petitioner and the annextures in form of affidavits are not commissioned by a commissioner for oaths. The documents are not affidavits as known in law. It is the commissioning of an affidavit that distinguishes it from other documents. It would be an abuse of the process of the court to allow these kind of documents to remain in record to form the basis of the case for the petitioner. The documents are thereby struck out and expunged from the record.

30. The advocates for the respondents submitted that once the documents are struck out the petition has no legs to stand on and that it should be consequently struck out. The advocates for the petitioner on the other hand submitted that the court has discretion to allow the petitioner to file fresh affidavits.

(3) Whether filing of affidavits is mandatory:-

31. The first question before the court is whether the provisions of rules 8 and 12 of the Elections rules are mandatory in respect to filing of affidavits. The other auxilliary question is whether a petition filed without the supporting affidavit of the petitioner and the affidavits of his intended witnesses is a competent one.

32. Article 87(2) of the Constitution provides that:-

“Petitions concerning an election, other than a presidential election, shall be filed within twenty eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.”

Rule 8(1) of the Elections Petitions Rules 2017 states that an election petition shall state:

(a) the name and address of the petitioner;

(b) the date when the election in dispute was conducted;

(c) the results of the election, if any, and however declared;

(d) the date of the declaration of the results of the election;

(e) the grounds on which the petition is presented; and

(f) the name and address of the advocate, if any, for the petitioner which shall be the address for service.”

Rule 8(4) states that the petition shall:-

(a) ……….

(b) be supported by an affidavit sworn by the petitioner containing the particulars set out under rule 12.

(c) ……….

Rule 12(1) states that a petition shall be supported by an affidavit which shall:-

(a) set out facts and grounds relied on in the petition;

and

(b) be sworn personally by the petitioner or by at least one of the petitioners if there is more than one petitioner.

Rule 12(2)(c) provides that an affidavit in support of a petition under sub-rule 1 shall state the results of the election, if any, however declared.

Rule 12(3) states that:-

“Each person who the petitioner intends to call as a witness at the hearing, shall swear an affidavit.”

Rule 12(4) provides that:-

“A petitioner shall, at the time of filing the petition, file the affidavits sworn under sub-rule 3. ”

33. In the case of Eng. Peter Kimori Maraga(supra) Muriithi J held that a supporting affidavit is not an integral part of an election petition and that striking out of an affidavit is not fatal to the petition. Tuiyot J agreed with him on this issue in the case of Henry Okello Nadimo vs IEBC & 2 others (2013) KLR.

34. However in Dickson Mwenda Githinji vs Gatirau Peter Munya & 2 others (2014) eKLR the Court of Appeal held that a supporting affidavit in support of a petition is a mandatory requirement. The court stated that:-

“Rule 9(3)(b) (now 8(4)(b)) of the Election Petition Rules provides that an election petition shall be supported by an affidavit of the petitioner containing the grounds on which relief is sought. The plain reading of this rule is that an affidavit in support of the petition is a mandatory requirement…”

35. In M’Nkiria Petkay Shen Miriti vs Ragwa Samuel Mbae & 2 others(2013) eKLR, Lesiit J held that the provisions of rule 8 are not mere technical requirements but are substantive and go to the root of the issues in an election petition. She said:-

“Rule 10(now rule 8) are not mere technical requirements laying down procedural form and content of intended election petitions but are substantive as they go to the root and substance of the issues and matters prescribed upon. Since the rules, like the Elections Act are special legislation created to give effect to the overriding objective mentioned in Rule 4, which is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act. Every rule is intended to achieve a required result geared towards, inter alia, expedition in the resolution of petitions.”

36. In John Michael Njenga Mututho vs Jayne Njeri Wanjiku Kihara & 2 others, Civil Appeal No.102 of 2008 at page 8, the Court of Appeal stated that:-

“Election petitions are special proceedings. They have detailed procedure and by law they must be determined expeditiously … the law has set out what a petition should contain and if any of the matters supposed to be included is omitted, then the petition would be incurably defective.”

37. This court is bound by the decisions of the Court of Appeal. It is my considered view that a supporting affidavit to a petition and affidavits of witnesses in an election petition are integral parts of a petition that should be filed with the petition within the 28 days window provided for by the Constitution for filing of parliamentary election petitions. A petition filed without the two is not a competent petition. Rules 8 and 12 of the elections rules complement Article 87(2) of the Constitution and the provisions of Elections Act, 2011, in the procedure for filing elections petitions. The rules are mandatory. A petition that does not comply with these provisions is incurably defective and cannot stand. This petition does not comply with those mandatory provisions. The petition is thus defective.

38. I have gone through the supporting document of the petitioner. The rules require the petitioner to declare the results of the election in the supporting affidavit. Though the document does not explicitly declare the results of the election, it makes reference to an annexed copy of the Kenya gazette that indicates the results of the election. It is my considered view that this is sufficient declaration of the results in the petitioner’s supporting document.

(4) Whether the court has discretion:

39. It was submitted that the court has discretion to allow filing of the affidavits in question as happens in normal civil cases. Rule 15(h) of the elections rules gives discretion to the court to allow a party to file further affidavits and additional evidence.

40. An election petition is a creation of a special legislation vide the Elections Act and the Elections Petitions Rules. Where the law provides a procedure for redress, it is that procedure that should be followed. In The Speaker of the national Assembly vs Karume (2008) I KLR, the Court of Appeal held that:-

“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or any Act of Parliament the procedure should be followed.”

41. In Amina Hassan Ahmed vs Returning Officer, Mandera County & 2 others (2013) eKLR Onyancha J (as he then was) held that an election petition is not an ordinary civil suit and that ordinary civil procedure principles arising from the interpretation of the Civil Procedure Act and rules may not be applicable. In this case the petitioner is not seeking to file further affidavits to any affidavits already filed but to file affidavits in support of the petition. Rule 15(h) therefore does not apply. The law is that the affidavits should have been filed at the time of filing the petition. The court has no discretion to allow the filing of the documents after the expiry of the 28 days allowed by the law for filing of parliamentary petitions.

42. In Ismail Suleiman & 9 others vs Returning Officer Isiolo County (supra) Makau J struck out a petition where the petition did not state the results of the petition and the affidavits of witnesses were not commissioned as required under the Oaths and Statutory Declarations Act. A similar situation prevails in this case where the supporting affidavit and the affidavits of the proposed witnesses are not commissioned. I am of the view that this petition should meet the same fate.

(5) Public Interest:

43. It was further submitted that courts should take liberal views on matters concerning election petitions as petitions raise matters involving public interest. That Article 159(2)(d) of the Constitution require courts to administer justice without undue regard to procedural technicalities.

The court does recognize that petitions are very important for the country’s democratic dispensation. Petitions are meant to enhance democracy and not to undermine it. However, public interest has to be considered within the realms of the law and not outside the law. In this regard I am guided by the Supreme Court of Kenya decision in the case of Zacharia Okoth Obado vs Edward Akong’o Oyugi & 2 others (2014) eKLR where the court stated that:-

“Article 159(2)(d) of the Constitution simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.

The petitioner was under an obligation to follow the law despite the level of public interest that his petition raised. Courts of law cannot abrogate the law to assuage public interest, however important public interest is.

44. The petitioner says that he was not to blame for the failure to commission the affidavits. An affidavit clearly declares before whom it is sworn. The petitioner did not appear before anybody to swear the affidavit. He did not demand to see the person who was to commission the affidavits. He did not demand a receipt for any money paid. The petitioner is aspiring to be an honourable member of the National Assembly. He is expected to know that a person is required to appear in person before a commissioner for oaths to swear an affidavit. The petitioner did not use due diligence to ensure that the documents were commissioned by a person authorized to do so. He cannot claim that he was a victim of circumstances. He just fell victim to what many Kenyans unflinchingly fall to on a daily basis – service by quacks. The petitioner used shortcuts to have the documents commissioned. He has to bear with the consequences of his own self-created misfortune. Though I do sympathize with him my hands are tied by the law.

45. In the foregoing, the petition as filed is not supported by an affidavit of the petitioner as required by rule 12(1)(b) of the elections rules. It does not contain affidavits of the proposed witnesses as required by rule 12(4) of the elections rules. The petition thereby does not comply with the mandatory provisions of the law. A petition filed without the said documents is not a competent petition. The petition is a still birth that should not be allowed to see the light of the day. The petition is accordingly struck out with costs to the respondents.

Delivered, dated and signed at Kakamega this 2nd day of November, 2017.

JESSE NJAGI

JUDGE

In the presence of:

S.M. Munoko - for petitioner

Were holding brief Masika - for 1st and 2nd respondents

Nyamu - for 3rd respondent

George - court assistant

Petitioner – present

3rd respondent – present

1st respondent – absent

30 days right of appeal