[2022] KEHC 14877 (KLR)

Getuba & another v Kibagendi & 2 others (Election Petition E002 of 2022) [2022] KEHC 14877 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14877 (KLR)

Republic of Kenya

In the High Court at Kisii

Election Petition E002 of 2022

M Thande, J

November 9, 2022

Between

Geoffrey Omwenga Getuba

1st Petitioner

Nathan Onkundi Mosioma

2nd Petitioner

and

Antoney Kibagendi

1st Respondent

Returning Officer, Kitutu Chache South Constituency David Kipkemoi Cherop

2nd Respondent

The Independent Electoral and Boundaries Commission

3rd Respondent

Ruling

1. Before Court for determination is an application dated 25. 10. 22 brought pursuant to Rules 4, 5(1), and 10(4) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, (the Rules) in which the Petitioners seek the following orders:1. Thatthe Notice of Appointment of Advocates dated September 20, 2022, and filed on the September 26, 2022 by M/s. Ombui Ratemo & Associates Advocates be struck out with costs;2. Thatall pleadings filed by M/s. Ombui Ratemo & Associates Advocates, on behalf of the 1st Respondent in relation to this matter, be struck out with costs for being improperly on record;3. Thatany other relief that this Honourable Court will be pleased to issue in the circumstances.4. Thatthe costs of, and incidental to this application be provided for.

2. The grounds upon which the Application is premised are that the firm of Ombui Ratemo & Associates Advocates (the firm) filed a notice of appointment of advocates, a document that is foreign to the Rules. The Petitioners stated that Rule 10(4) of the Rules provides for the filing and service of a notice of address for service within 5 days from service of the petition. The Petitioners contended that the 1st Respondent has never filed its notice of address of service.

3. The Petitioners further stated that the notice of appointment of advocates was filed out of time, without leave of the Court. The Petition having been served on September 15, 2022, the 1st Respondent ought to have filed his notice by September 20, 2022, but filed the same September 21, 2022. Further that the pleadings were filed by a stranger and should be struck out with costs. It is the Petitioners’ further contention that they will suffer prejudice if the pleadings filed by the 1st Respondent are allowed to remain on record, and that in the wider interest of justice, the same should be struck out.

4. In his replying affidavit of October 26, 2022 opposing the Application, the 1st Respondent’s Advocate Ratemo Ombui (the advocate) averred that the omission to file a notice of address of service was occasioned by the endeavour to beat the time, while quickly preparing the response to the Petition. He urged that the mistake is excusable and does not go to the substance of the Petition. Further that the omission does not render the response to the Petition defective. He further stated that by their application, the Petitioners do not seek to attain the objective of the Rules of facilitating the just, expeditious, proportionate and affordable resolution of election disputes. Rather they seek to lock out the 1st Respondent from the proceedings.

5. The advocate further stated that the Petitioners have not provided any evidence demonstrating that the Petition was served upon the 1st Respondent on September 15, 2022 and that in any case the Court has the discretion to determine the effect of failure to comply with the Rules. Additionally, it was averred that a notice of appointment merely informs the world that a given party has appointed an advocate with whom to engage in the matter before court. It was further stated that this Court has power under Rule 19 to extend or limit the time within which an act or omission shall be done with such conditions as may be necessary. Further that the failure to file the notice of address for service has not in any way prejudiced the Petitioners, who have never objected to serving him on behalf of the 1st Respondent. He urged the Court to deem the annexed notice of address of service as duly filed.

6. I have given due consideration to the Application, the rival affidavits and submissions. The following are the issues that fall for determination:i.Whether the error of filing of a notice of appointment as opposed to a notice of address for service is fatal.ii.Whether the notice of appointment of advocates should be struck out.iii.Whether the pleadings filed on behalf of the 1st Respondent are fatally defective and should be struck out.

Whether the error of filing of a notice of appointment as opposed to a notice of address for service is fatal 7. The 1st Respondent conceded that there was an inadvertent omission in filing the notice of address of service, he however contended that the omission did not go to the root and substance of the Petition or the jurisdiction of the Court. Further that the omission does not prejudice the Petitioners in any way. The 1st Respondent additionally argued that the filing of a notice of appointment of advocates is not misplaced as such notice relays similar information as a notice of address for service. He relied on the case of Saad Yusuf Saad v Independent Electoral and Boundaries Commission (IEBC) & 2 others [2017] eKLR where the Court declined to strike out the respondents’ responses for failure to file a notice of address for service. The Court stated:25. A reading of the above rule indicates that a respondent who has not filed a response to a petition shall not have audience before the Court. The rule applies to a response and not to a notice of address for service. Nothing in the Rules excludes a respondent who has not filed a notice of address of service from participating in the proceedings. If it had been the intention to lock a respondent out of proceedings for failure to file a notice of address of service, nothing would have been easier than for of the Rules Committee to so provide. In the circumstances, I am not persuaded that failure to file a notice of address of service is sufficient to strip the 1st and 2nd Respondents of their locus standi in these proceedings.

8. I concur with the holding in the cited case. While Rule 11(8) provides that 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, there is no such provision in relation to failure to file a notice of address for service.

9. The purpose of a notice of address for service is to inform a petitioner of the place to effect service upon respondents. The notice of appointment of advocate herein contains the address for service of the 1st Respondent and thereby notified the Petitioner and other parties of the place to effect service upon the 1st Respondent. It accordingly serves the same purpose as a notice of address for service would. Indeed, the Petitioners have been serving the 1st Respondent through the address contained in the notice of appointment. Had the 1st Respondent not filed any document showing his address for service, there would be no obligation on the Petitioner and the other parties to serve process upon the 1st Respondent. In light of this, the Court finds that the filing of a notice of appointment rather than a notice of address for service is a mere technicality that does not go to the substance of the Petition. The error on the part of the 1st Respondent is therefore not fatal.

Whether the notice of appointment of advocates should be struck out 10. The Petitioners contended that the notice of appointment of advocates filed on September 26, 2022 is fatally defective for having been filed out of time without leave of the Court. Further, that having been served with the Petition on September 15, 2022, the 1st Respondent ought to have filed a notice of address for service by September 20, 2022, being 5 days of date of service as required by Rule 10(4). The Petitioners relied on the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the Supreme Court had this to say about an appeal filed out of time without leave of Court:To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this Court will not accept a document filed out of time without leave of the Court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this Court’s Registry. This is irregular as that document is unknown in law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No. 10 of 2014 having been filed out of time and without leave (an order of this Court extending time), is expunged from the Court’s Record.

11. Rule 10(4) requires a person served with a petition to file a notice of address for service within 5 days of such service. It is not disputed that the 1st Respondent filed a notice of appointment of advocates on September 26, 2022. Although the Petitioners stated that they served the Petition upon the 1st Respondent on September 15, 2022 no evidence was placed before the Court to confirm this. Notably even after it was stated in response that the Petitioners have not demonstrated that the 1st Respondent was served on September 15, 2022, the Petitioners did not controvert this by way of a further affidavit.

12. It is trite law that he who alleges must prove. Section 107 of the Evidence Act provides:1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

13. Where a party wishes to rely on matters of fact as the Petitioner herein, evidence must be provided in order to discharge the burden of proof set out in Section 107 of the Evidence Act. Without placing any material before the Court to support the claim that the Petition was served upon the 1st Respondent on 15. 9.22, and that the notice of appointment of advocates was filed late, the Petitioners’ failed to discharge the burden of proof placed upon them. Accordingly, I am unable to find that the 1st Respondent filed the notice of appointment of advocates out of time. It follows therefore that no leave of Court was required. In this regard, the case of Nicholas Kiptoo Korir Arap Salat(supra) cited by the Petitioners is not relevant to the facts herein. In any event, even if it were true that the notice of appointment was filed out of time, this Court has the discretion under Rule 19(1) to extend the time for filing in order to ensure that injustice is not done to any party.

Whether the pleadings filed on behalf of the 1st Respondent are fatally defective and should be struck out 14. The Petitioners submitted that the 1st Respondent pleadings were filed on 21. 9.22 while the notice of appointment of advocates was filed on 26. 9.22. The pleadings were therefore filed without the firm being on record, and therefore by a stranger. Reliance was placed on the case of Joshua Nyamache T. Omasire v Charles Kinanga Maena [2008] eKLR where Musinga, J. (as he then was) struck out an application filed by an advocate who was not properly on record. A careful reading of that decision however, shows that the firm that filed the application in question, had been replaced by another firm through a notice of change of advocates. The context in that matter is different from the circumstances herein. Accordingly, the authority is not useful.

15. The Petitioners also relied on the case of Stephen Maina Githiga & 5 others v Kiru Tea Factory Company Ltd [2019] eKLRin which the Supreme Court spoke to the issue of a firm of advocates not being properly on record as follows:(5)Having ruled that the firm of Kithinji Marete & Company Advocates is properly on record for Kiru Tea Factory Company Limited, we do not hesitate to strike out the Notice of Appointment lodged by Triple OK Law, as well as its Notice of Change of Advocates, and all pleadings which that firm has filed on behalf of the Company — as sought in the first application.

16. I have taken time to read the decision and note that the reason the notice of appointment lodged by the firm of Triple OK Law was struck out, is because the Court had found that the firm of Kithinji Marete & Company Advocates to be properly on record for the respondent therein. Indeed, in the preceding paragraph, the Court had stated:(4)The 1st – 4th appellants have filed affidavits, all dated 13 May 2019, asserting that the firm of M/s Triple OK Law was appointed by Kiru Tea Factory Company, the respondent herein, to represent it. The same affidavits and submissions proffered in the present applications were also presented in Application No. 12 of 2019 (Stephen Maina Githiga and 5 Others v. Kiru Tea Factory Company Limited), in respect of which we have ruled that the firm of Kithinji Marete & Company Advocates is properly on record. Our decision was informed by an existing Order of the Court of Appeal, dated 6 December 2017.

17. The cited authority is not helpful in the present case as the 1st Respondent has not had another firm of advocates on record, representing him.

18. The Court is alive to the fact that the objective of the Rules as expressed in Rule 4(1) is to facilitate the just, expeditious, proportionate and affordable resolution of elections petitions.The Court is also mindful of the imperative in Article 159(2)(d) of the Constitution to administer justice without undue regard to procedural technicalities.

19. In this regard, I am persuaded by the holding in the case of Iway Africa Limited v Infonet Africa Limited & another [2019] eKLR cited by the 1st Respondent, where Makau, J. stated:21. Having stated the above, I am of the considered view that even if I were to find that the notice of appointment ought to have been filed, which I have not, proceeding to strike out the applications dated 12th and October 16, 2018 as well as the proceeding, of October 17, 2018 would amount to giving due regard to technicalities of procedure contrary to Article 159 (2) (d) of the Constitution of Kenya 2010, and would in my view defeat the overriding objectives as set out under section 1A of the Civil Procedure Act, whose purpose is to facilitate the just, expeditious, proportionate and affordable resolution of Civil disputes. This court is alive to the fact, that it is required to do substantive justice and that it should stand to see justice is not defeated due to application of technicalities in the law but instead should stand for a spirited commitment to the constitutional obligations to ensure justice is served without undue regard to technicalities and doing substantive justice should guide the court’s decision. The alleged failure by the garnishee’s Advocate to file a Notice of Appointment, which I have found otherwise; within the dates alleged is in my view a procedural technicality, that should not be allowed to hinder justice as the courts are nowadays concerned with doing substantive justice rather than sticking to procedural technicalities which result to injustice rather than justice to litigants.

20. I am of the view that the filing of the response before the notice of appointment of advocates is a technicality that can be cured by invoking the provisions of Article 159(2)(d). To do otherwise would be to sacrifice substantive justice at the altar of procedural technicalities. In any event, it has not been demonstrated that any prejudice has been or will be suffered by the Petitioners if the 1st Respondent’s response is not struck out. On the other hand, the 1st Respondent whose election is under challenge in the Petition, will be greatly prejudiced if his response is struck out. thereby excluding him from the proceedings herein, resulting in curtailment of his right to access to justice. Further, as stated in many a decision by our Courts, striking out proceedings is draconian as it drives a party out of the seat of justice. As I weigh the prejudice that may be suffered by the parties either way, I find that the balance tilts in favour of the 1st Respondent. In this regard, I am guided by the Court of Appeal in the case of Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] eKLRwhere the Court stated that nowadays pendulums have swung and the courts have shifted towards addressing substantive justice and no longer worship at the altar of technicalities. The wider interests of justice therefore will be served if the response by the 1st Respondent remains on record and the Petition is heard on merit.

21. In the end and in view of the foregoing, I find that the Application dated October 25, 2022 lacks merit and the same is hereby dismissed. Costs in the Cause.

DATED AND DELIVERED IN NAIROBI THIS 9TH DAY OF NOVEMBER, 2022. M. THANDEJUDGEIn the presence of: -………………………………….………………………… for the Petitioners…………………………………………for the 1st Respondents........ the 2nd & 3rd Respondents……………………………...…………………………..……Court Assistant