[2017] KEHC 2447 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

ELECTION PETITION NO. 2 OF 2017

FRANCIS MWANGANGI KILONZO….........…..…PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION....................1ST RESPONDENT

RETURNING OFFICER

YATTA CONSTITUENCY.............................2ND RESPONDENT

CHARLES MUTAVI KILONZO...................3RD RESPONDENT

RULING

1. The constituents of Yatta went to the polling stations to elect their member of National Assembly during the general election held on 8th August 2017. When the results were declared, the 3rd respondent Charles Mutavi Kilonzo had won by getting 17,888 votes. The runner-up was the petitioner Francis Mwangangi Kilonzo who got 11,350 votes. There were nine (9) contestants in all.

2. The petitioner was aggrieved by the manner in which the election had been conducted. He contended that the election had not been conducted in accordance with the Constitution and the law. He stated that the 3rd respondent’s win was not valid. This is why he petitioned the court on 7th September 2017 to have the election and results declared invalid, null and void. The election had been conducted by the Constituency Returning Officer (3rd respondent) on behalf of the Independent Electoral and Boundaries Commission (1st respondent).

3. The respondents opposed the petition and took the position that the election had been properly conducted, and that the 3rd respondent had been validly elected.

4. On 3rd November 2017 the 3rd respondent filed the present application to have the petition struck out with costs for failure to comply with rules 8and12(2) of the Elections (Parliamentary an County elections) Petition Rules, 2017. In respect of rule 8 the grounds were that the receipt of the petition had not been acknowledged by the Registrar; and the petition had not stated the name and address of the petitioner, the date when the disputed election was conducted, the results of the election, the date of the declaration of the results, the grounds on which the petition was presented and the names and address of the advocate for the petitioner for the purpose of service. Under rule 12(2), it was alleged that the affidavit in support of the petition had not stated when the disputed election was conducted, and neither had it indicated the results of the election, the date when the results were declared and the name and address of the petitioner for the purpose of service.

5. It was the 3rd respondent’s case the provisions of rules 8 and 12(2) were in mandatory terms, and therefore failure to comply with them had rendered the petition incurably defective, and therefore liable to be struck out in with costs.

6. The 2nd respondent swore a replying affidavit on his behalf and that of the 1st respondent to support the application.

7. The petitioner’s response was that the application had been brought without leave after directions had been given following pre-trial conference, and that this offended rule 15(2) of the Rules. He stated that the petition had complied with the Rules, and, in any case, any omission was excusable and curable under section 80(1) and (d) of the Elections Act, 2011,andrule 5(2)of theRules. Lastly, he asked that he should not be punished for the failure of the Registrar to acknowledge the receipt of the petition. His case was that the application was intended to delay the hearing and disposal of the petition.

8. Mr. Mungata for the 3rd respondent, Mr. Okuta for the 1st and 2nd respondents and Mr. Makundi for the petitioner addressed the court on the application. Mr. Mungata and Mr. Okuta filed written submissions to support their respective cases.

9. There is no dispute that on 18th October 2017 a pre-trial conference was conducted in which directions were given regarding the disposal of the interlocutory applications that were on record. Regarding the application for scrutiny and recount by the petitioner, parties were to exchange pleadings and submissions. The application was to be taken at a later stage during the hearing of the petition. The 1st and 2nd respondent had on 19th September 2017 filed a notice of preliminary objection, and had on 28th September 2017 filed a motion. Both had sought that the petition be struck out for being filed out of time. Direction was given that the motion and notice be heard on 3rd November 2017. Parties agreed on the issues for determination, and trial was ordered to commence on 6th November 2017.

10. When the court convened on 3rd November 2017 for the motion and notice of objection, the 3rd respondent filed the present application. The scheduled motion and notice were argued, and directions given that the new application be served and heard on 6th November 2017. On 6th November 2017 the motion and notice were dismissed with costs in a ruling that was delivered. The court heard the 3rd respondent’s application and dismissed it, but reserved its reasons. The reasons are the ones contained in this Ruling. In the meantime, the hearing of the petition got underway with the petitioner testifying.

11. Pre-trial conferencing and interlocutory applications are dealt with under rule 15. Under rule 15(2) –

“An election court shall not allow any interlocutory application to be made on conclusion of the pre-trial conference, if the interlocutory application could have, by its nature, been brought before the commencement of the hearing of the petition.”

12. I have indicated in the foregoing that the pre-trial conference was concluded on 18th October 2017 when, among other things, the court gave directions on the disposal of the outstanding applications, and the hearing and disposal of the petition. The 3rd respondent has not indicated why he could not bring this application earlier than now. The impugned petition and supporting affidavit were the first pleadings that the petitioner filed. The respondents filed their responses to them and the issue of non-compliance with rules 8 and 12(2) was not raised. By the time of the conclusion of the pre-trial conference there was no indication that a critical application to strike out the entire petition was contemplated. One has to recall the constitutional requirement under Article 87(1) of timely resolution of electoral disputes. It is critically important that whenever an election petition has been filed the court, and all parties, should endeavor to have it expeditiously handled, so that the electorate in the area affected by the petition are able to know with finality, and within a reasonable time, who their representatives are. Pre-trial conferencing was one of the tools that the law and Rules employed to achieve this important result. Otherwise, parties would engage the court in endless applications that would stall the hearing and finalisation of the petition. It is for these reasons that the court declined to allow the present application by the 3rd respondent.

13. In case I was wrong, I will proceed to deal with the merits of the application. I agree with the respondents that under rules 8and12(2) the contents of a petition and the affidavit in support of the petition are indicated. Under rule 8(1):

“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 12(2) provides that this same information shall be contained in the affidavit sworn to support the petition.

14. It was submitted on behalf of the 3rd respondent, and supported by the 1st and 2nd respondents, that these requirements are mandatorily required by the rules, and that non-compliance should automatically lead to the striking out of the petition. Reliance was placed on the decisions in Amina Hassan Ahmed –v- Returning officer Mandera County & 2 Others [2013]eKLR, Aboud Ali –v- IEBC & 2 Others [2013]eKLR, Jimmy Mkala Kazungu –v- IEBC & 2 Others [2017]eKLRandJohn Michael Njenga Mututho –v- Jayne Njeri Wanjiku Kihara & 2 Others [2008]eKLR.In each of these decisions, the running theme was that the stated contents of rules 8and12(2) are not mere technical requirements; the contents are substantive and go to the root and core of the issues and matters prescribed upon, and that any deficient compliance was likely to lead to delay and injustice which should be frowned upon. These decisions generally state that, because the objective of the rules is to facilitate the just, expeditious, proportionate and affordable resolution of elections petitions(rule 4(1)), non-compliance with the same should attract the punishment of striking out. It was further submitted by the respondents that Article 159(2)(d) cannot be called in to assist a petitioner who has not complied with these rules, and reliance was placed on the decision in Nicholas Kiptoo Arap Korir Salat –v- IEBC & 6 Others [2013]eKLR. However, it is noted that in this case the Court of Appeal was dealing with the appellant’s failure to comply with Rule 77 of the Court of Appeal Rules which provides that –

“An intended appellant shall, before or within seven days after lodging notice of appeal, serve copies thereof on all persons directly affected by the appeal.”

There was application to strike out the appeal for the con-compliance with the rule. The court discussed the failure by the appellant and, by a majority, saved the appeal. It relied on the sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution, and also noted that the failure to serve the appeal within 7 days had not occasioned any real prejudice to the respondents. In the judgment by Justice W. Ouko, JA it was observed as follows:-

“It ought to be clearly understood that the courts have not belittled the role of procedural rules. It is emphasized that procedural rules are tools designed to facilitate adjudication of disputes; they ensure orderly management of cases. Courts and litigants (and their lawyers) alike are, thus, enjoined to abide strictly by the rules. Parties and lawyers ought to be reminded that the bare invocation of the Oxygen principle is not a magic wand that will automatically compel the court to suspend procedural rules. And while the court, in some instances, may allow the liberal application or interpretation of the rules that can only be done in proper cases and under justifiable causes and circumstances. This is why the Constitution and other statutes that promote substantive justice deliberately use the phrase that justice be done without ‘undue regard’ to procedural technicalities.”

15. According to the petitioner, he had complied with the rules and that, in any case, the situation could be saved by rule 5(1)andArticle 159(2)(d).

16. I have considered the petition filed by the petitioner. In it the date of the election was indicated. It was shown that the results were declared on 10th August 2017. The results that were declared were shown. The address of the petitioner and his advocates for the purposes of service were included. Lastly, the grounds on which the petitioner was based were given. To that extent, I agree with the petitioner that he complied with rule 8. I have also looked at the supporting affidavit. He gave his name and address and the reasons why he was complaining about the election. He did not give the date of the declaration of the results, the results declared and the name and address of his advocate for purpose of service. This was partial compliance with rule 12(2). However, in the parties’ subsequent pleadings and affidavits, the information subject of the 3rd respondent’s complaint was given, and it was on that basis that the petition was set down for hearing.

17. I consider that the information required by rules 8and12(2) of the petition and affidavit, respectively, is quite important. The information determines the competence of the petition, and aids in the proper, efficient, expeditious and just conduct and resolution of the election petition. The particulars in the petition and affidavit are furnished to show the other side the case he has to meet. They show what grievances the petitioner is complaining about. It is noted that election petitions are a special breed of cases, with special jurisdiction and are guided in their resolution by the Elections Act and Rules.

18. However, the effect of non-compliance with the Rules is governed by rule 5(1) which provides that:-

“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.”

It is, therefore, not true that any failure to comply with any of these Rules, whichever way they are couched, will automatically result in striking out. The court has been left with the discretion, depending on the circumstances of each particular case, to strike out or not to strike out (Dickson Mwenda Kithinji –v- Gitarau Peter Munya & 2 Others Civil Appeal No. 38 of 2013 at Nyeri). In all circumstances where non-compliance has been shown, the Court has to recall the provisions of Article 159(2)(d) which state that:-

“In exercising judicial authority, the courts and tribunals shall be guided by the following principles:-

(a)……………………………………………………………

(b) ……………………………………………………………

(c) ……………………………………………………………

(d) justice shall be administered without undue regard to procedural technicalities.”

19. It has to be considered that before the promulgation of the Constitution in 2010 the resolution of electoral disputes was characterized by the elevation of legal and procedural technicalities over substantive justice (Evans Odhiambo Kidero & 4 Others –v- Ferdinand Ndung’u Waititu & 4 Others, Supreme Court Petition No. 18 of 2014). This reliance on legal and procedural technicalities was one of the reasons why the public lost confidence in the Judiciary. There has to be deliberate effort on the part of the courts to reclaim this confidence.

20. It is generally accepted that election petitions have to comply with any mandatory provisions of the law and Rules, and that the courts may strike out any petition that does not comply. The requirements of rule 8and12(2) are substantive and go to the root of the petition, and have to be complied with. The effect of non-compliance, however, has to be decided based on the peculiar facts of each case, and while paying attention to the need to do substantive justice to each petition.

21. In Nicholas Kiptoo Arap Salat –v- IEBC & 7 Others, Supreme Court Petition No. 23 of 2014, the Supreme Court was dealing with a situation where the appellant, in appealing to the Court, had filed an originating summons instead of filing a petition of appeal pursuant to rule 33 of the Supreme Court Rules 2012. This was an irregular appeal. However, the Court saved the appeal under Article 159(2)(d). It observed that:

“Although the Rules of this court give guidance on the form which an appeal should take, we are cognizant of the fact [that] Article 159(2)(d) of the Constitution accords precedence to substance, over form…………”

22. In Munya Case (above), the Court of Appeal observed as follows:-

“Article 159 of the Constitution enjoins courts to dispense justice without undue regard to technicalities. The Constitution should also be interpreted in a purposive manner. Taking note of Article 159 and the jurisprudence developed by election courts in Kenya and a purposive approach to interpretation of Rule 33(4), we are of the considered view that in the instant case, the trial Judge erred in law in placing a restrictive and technical interpretation to Rule 33(4) of the Election Petition Rules in stating the scrutiny and recount cannot be done in constituencies.”

23. In conclusion, I observe that, whereas it is important that every election petition should conform to the requirements of rules 8 and 12(2), care should be taken so that there isn’t a restrictive and technical interpretation of these rules. Effort should always be made to ensure that there is substantive justice done to the election petition. In this case, there wasn’t full compliance with rule 12(2), but the justice of the matter calls for the saving of the petition under Article 159(2)(d).

24. There was the small matter, that the receipt of the petition had not been acknowledged by the Registrar. I do not want to say that this petition was filed at this Registry, it was served and was responded to by the respondents. What is of value is that it was the duty of the Registrar, and not the petitioner, to acknowledge the receipt of the petition. If the Registrar did not acknowledged the receipt, this should not be blamed on the petitioner.

25. The result is that the 3rd respondent’s application dated 2nd November 2017 and filed on 3rd November 2017 seeking the striking out of the petition cannot succeed. The same is dismissed with costs.

DATED and DELIVERED at MACHAKOS on the 10TH day of NOVEMBER 2017.

A. O. MUCHELULE

JUDGE