[2017] KEMC 63 (KLR)

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT THIKA

THE ELECTIONS ACT. 2011

THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION

RULES 2017

THE ELECTION PETITION NUMBER 1 OF 2017

GITHINJI JOHNSON KAMAU ……………....………………….. PETITIONER

VERSUS

KINGARA BENSON KAMAU …………………………….. 1ST RESPONDENT

KWANUSU DICKSON SIMIYU ………………..……..….. 2ND RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION ………….………………... 3RD RESPONDENT

RULING

After the general election held in Kenya on the 8th of August, 2017 Kingara Benson Kamau was declared the duly elected member of the County Assembly Mwihoko Ward Ruiru constituency, Kiambu County.

The petitioner herein Githinji Johnson Kamau filed the petition on the 5th of September, 2017 challenging the election of the 1st respondent.

In his petition, the petitioner seeks for the following orders:-

(a) Scrutiny and recounting of all ballots cast at Mwihoko pollingstation for the position of member of County Assembly Mwihoko Ward, Ruiru Constituency, Kiambu County.

(b) An order directed at the 3rd respondent to avail a report of the number of people positively identified during the election day by the Kenya Integrated Election Management System(KIEMS) device used at Mwihoko Polling Station.

(c) A declaration that the 1st respondent was not validly and duly elected and order a re-take of the same.

(d) A determination that the 2nd respondent committed electoralmalpractices and irregularities.

(e) Cost of the petition.

(f) Any further order the court deems just and appropriate.

The petition was filed by Messrs Kimani Kahete & Company Advocates and served upon the respondents.

Accordingly the 1st respondent filed his response on the 20th of September, 2017 through the firm of Ishmael and Associates. While the 2nd and 3rd respondent filed their response on the 18th September, 2017 through the firm of Akide & Co, Advocates.

The court proceeded to invite the parties to take a mention date for the directions Under Orders 11 of CPC.

When the petition came up for mention on 6. 10. 2017 Mr. Kimani applied to withdraw the petition. He informed the court that they had filed a notice to withdraw the petition on the 20th September, 2017.

Mr. Mungai for the 1st respondent submitted that the petition should be dismissed as the petitioner had not deposited security for costs as required by the law. He further submitted that the court lacked jurisdiction to entertain any arguments by the petitioner.

Mr. Munene for the 2nd and 3rd respondent submitted that the petitioner had not deposited security for costs nor had the notice of withdrawal been served upon him. He urged the court to dismiss the petition. The parties consented to file written submissions for the court to decide on three issues namely:-

1) Whether a notice to withdraw suit amounted to an application to withdraw the petition.

2) Whether the petitioner had deposited security for costs.

3) Whether the respondents were entitled to costs.

The petitioner submitted that he filed a notice to withdraw a suit on 20th of September, 2017, which was a clear intention to withdraw the petition and served it upon the respondents who had not filed their responses to the petition.

He admitted that he had not complied with S. 78 of the Election Act as he did not receive money from well wishers who had promised to support him. Besides that the petitioner had agreed with the 1st respondent on a personal level to have the petition withdrawn.

In support of his submissions he relied on the following authorities.

(1) Anastacia Wanjiru Mwangi –vs- IEBC & Another (2013) eKLR.

(2) Moses Siasi –vs- IEBC and 2 others (2013) eKLR

He also relied on Rules 23 to 26 of the Election (Parliamentary and County) Petition Rules 2017.

The 1st respondent in his written submissions filed on the 13th October, 2017 submitted that on the issue of deposit of security for costs, the petition should be dismissed for want of compliance with S. 78(2) of the Election Act. No. 24 of 2011 and Rule 13 of the Election(Parliamentary and County) Petition Rules 2017

He relied on the following authorities in support of his submissions.

(1)Malindi Election Petition No. 1 of 2008 eKLR. Esposito Franco –vs- Amason Kingi Jeffa & 2 otherswhere the court dismissed the petition with costs to the respondent as security for costs had not been deposited within the time stipulated.

(2) Civil Appeal No. 273 of 2003 eKLR Rotich Samuel Kimutai –vs- Ezekiel Lenyongopeta & 2 others where the court held that the consequences of non payment of security for cost as stipulated by S. 211 of the Act would lead to the dismissal of the petition.

(3) Anastacia Wanjiru Mwangi –vs- IEBC & Ant. (2013) eKLR which buttressed the above position.

On the issue of withdrawal of the petition, the 1st respondent submitted that the notice to withdraw the suit lacked merit for the following reasons:-

(a) Leave to file the purported notice was never sought.

(b) The notice was brought under the wrong provisions of the law.

(c) The notice was not in the prescribed form.

(d) The notice was never served upon the 1st respondent and that the 1st respondent came to learn about the same through 3rd parties.

(e) That there is no such notice as “Notice to withdraw Suit” in the Election Act.

(f) That the purported Notice to withdraw a suit offends Rule 23 and 24 of the Election Petition Rules 2013 in toto.

He submitted that the notice was totally defective and should be struck out with costs.

In support of his submissions he relied on Moses Siasi –vs- IEBC and 2 others (2013) eKLR

On the issue of costs, the 1st respondent submitted that costs follow an event. That failure by the petitioner to deposit security for costs which was mandatory attracted an irreversible consequence of nullifying or dismissing the petition with costs.

In support of his submissions that he should be awarded costs, he relied on Rule 32 of the Election (Parliamentary and County) Petition Rules 2017 and also cited the case of Esposito Franco and Moses Siasi –vs- IEBC and 2 others (2013) eKLR.

He further submitted that the failure by the petitioner to deposit the security for costs amounted to vexatious conduct on the part of the petitioner which had led the 1st respondent to incur expenses in research, preparation of court documents, court attendances and other incidental expenses.

He urged the court to award him costs.

The 2nd and 3rd respondent in their submissions filed in court on the 24th October, 2017 submitted that on the issue of deposit of security for cost, the petitioner failed to deposit costs within 10 days of filing the petition as stipulated in Rule 13 of Election (Parliamentary and County) election Petition Regulation 2017rendering the petition fatally defective. He urged the court to dismiss it with costs. In their submissions they relied on the following authorities:-

(1) Esposito Franco –vs- Amason Kingi Jeffa & 2 others(2008)eKLR

(2) Jane Naicar Eshuchi –vs- Maurice Sakwa & 2 others.

(3) Evans Nyambaso Zekadiah & Another –vs- IEBC & 2 others

Where Justice Sitati held that the depositor for security costs is a substantive issue that goes to the proceedings as non payment of the same deprives the court of jurisdiction to deal with the matter further.

On the issue of the withdrawal of the petition, the 2nd and 3rd respondent submitted that the petitioner had failed/neglected to couch the withdrawal within the confines of Rule 21, 22 and 23 of the Election (Parliamentary and County Election) Petition Regulation, 2017 rendering it to be fatally defective. They urged the court to dismiss it with costs to the respondent.

They relied on the case of Moses Siasi –vs- IEBC and 2 others (2013) eKLR

On the issue of whether the 2nd and 3rd respondent were entitled to costs, they submitted that they had worked hard to prepare the memorandum of appearance, response to the petition, replying affidavits and witness statements and attending court.

In support of their submission they relied on the case of Evans Nyambeso and urged the court to award them costs of Kshs.3 million.

The first issue for determination is whether the notice to withdraw suit amounts to application for leave to withdraw the petition.

The petitioner submitted that he filed a notice of withdrawal of suit on the 20th September, 2017 which is a clear intention on the part of the petitioner to withdraw his petition.

The Election (Parliamentary and County) Petition Regulations Rule 21, 22 and 23 provides for the Legal requirements to be adopted in withdrawing an election petition. Rule 21 provides as follows:-

(1) A petition shall not be withdrawn without leave of an election Court.

(2) The election court may grant leave to withdraw a petition on such terms as to the payment of costs or as the election court may otherwise determine.

(3) An application for leave to withdraw a petition shall:-

(a) be in Form 5 set out in the first schedule.

(b) be signed by the petitioner or a person authorized by the petitioner.

(c) state the grounds of withdrawing the petition.

(d) be lodged at the registry.

(4) The parties to a petition shall each file affidavit, before leave for withdrawal of a petition is determined, addressing the grounds on which the petition is intended to be withdrawn.

(5) Despite sub-rule (4) an election court may on cause being shown, dispense with the affidavit of a party to the petition if it seems to the election court on special grounds to be fit and just.

(6) Each affidavit filed under sub-rule (4) shall contain the following declaration.

To the best of the deponent’s knowledge and belief, that no agreement or terms of any kind has been made, and that no undertaking has been entered into, in relation to the withdrawal of the petition.

(7) Despite sub-rule (6) where a lawful agreement shall have been made with respect to the withdrawal of the petition, the affidavit shall set out the terms of the agreement.

Rule 22 provides that:-

(a) The petitioner shall serve each respondent with a copy of the application to withdraw a petition.

(b) The petitioner shall publish in a newspaper of National circulation a notice of intention to withdraw an election petition in Form 6 set out in the first schedule.

Rule 23 provides that:-

(1) The Registrar shall issue a notice for hearing an application to withdraw an election petition in Form 7 set out in the first schedule to the parties in an election petition.

(2) The Notice issued under sub-rule (1) shall specify the time and place for the hearing of the application for thewithdrawal of the petition Under Rule 27.

It is therefore clear that there are clear and elaborate procedures and steps to be complied with in regard to withdrawal of an election petition. The requirements have to be complied with as the rules are couched in mandatory terms.

In the present case, it is clear that the petitioner wants to withdraw his petition. However, he has not complied with the rules which are mandatory. The Notice to withdraw a suit does not comply with the requirement as laid down in Rule 21, 22 and 23 of the Election (Parliamentary and County Election ) Petitions Rules 2017. It is not enough for counsel to submit that the petitioner by filing a notice to withdraw a suit demonstrated his intention to withdraw his petition.

The petitioner submitted that he proceeded to file the notice to withdraw the suit as the respondent had not filed their response. I have carefully perused the court record and I find that the 1st respondent filed his response on 20. 9.2017 while the 2nd and 3rd response was filed on the 18. 9.2017 which is contrary to what the petitioner submitted. I find that the Notice to withdraw a suit is fatally defective and the same is struck out.

The next issue for determination is whether the petitioner deposited security for costs.

The petitioner in his submission admitted that he had not deposited security for costs as his well wishers who had promised to support him failed to do so. He further submitted that he had agreed with the 1st respondent to withdraw the petition.

S. 78(1) of the Election Act 2011 provides as follows:-

A petitioner shall deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petition under this part.

S. 78(2) A person who presents a petition to challenge an election shall deposit:-

(a) One million shillings, in the case of a petition against a presidential candidate.

(b) Five hundred thousand shillings, in the case of petition against a member of Parliamentary or a county governor; or

(c) One hundred thousand shillings, in the case of a petition against a member of a County Assembly.

S. 78 (3) explains what should happen where the petitioner defaults in depositing security. It states that where a petitioner does not deposit security as required by this section or if an objection is allowed and not removed, no further proceedings shall be heard as the petitioner and the respondent may apply to the election court for an order to dismiss the petition and the payment of the respondent costs.

Rule 13 (1) of the Election (Parliamentary and County) Petition Rules 2017provides as follows:-

‘Within ten days of the filing of a petition, a petitioner shall deposit security for the payment of costs in compliance with section 78 (2) (b) and (c) of the Act.

The respondent referred me to the following authorities on the issue of security for costs:-

(1) Election Petition No. 1 of 2008. Esposito Franco –vs- Amason Kingi Jeffa & 2 Others

(2) C. A No. 273 of 2003. Rotich Samuel Kimutai –vs- Ezekiel Lenyongopeta & 2 Others

(3) Anastacia Wanjiru Mwangi –vs- IEBC & Another (2013)eKLR.

(4) Evans Nyambaso Zekadiah & Another –vs- IEBC & 2 others

(5) Jane Naicar Eshuchi –vs- Maurice Sakwa & 2 others.

In Evans Nyambaso Zekadiah & Ant. –vs- IEBC & 2 others Justice Sitati expressed herself thus, “I entirely agree with the learned judge in holding that the deposit of security for costs is a substantive issue that goes to the root of the proceedings as non payment of the same deprives the court of the jurisdiction to deal with the matter. I also agree that the requirement for deposit of security for costs keeps away from the court corridors some busy bodies who file cases in court while knowing that such cases have no chance of succeeding and also while knowing that they have no intention of paying costs once they close their case.

There is no argument that a court which has no jurisdiction cannot move one single step in a matter that is before it.

In Kisii election petition No. 6 of 2013 Fatuma Sainabu Muhammed –vs- Ghati Dennituli & 10 others (unreported)justice Murithi held that:-

“If no security for costs is deposited then the petition or other proceedings though validly lodged before the court in accordance with the applicable procedure rules cannot proceed to hearing and determination as further proceedings are prohibited.

The provisions of security for costs is in my view a substantive requirement underpinning the jurisdiction of the court to deal with the dispute in the proceedings in which the security for costs is required and is based on the sound principle for the protection of the defendant from unrecoverable costs.

Consequently our case law has determined that the requirement that a petitioner pays security for costs goes to the root of the court’s jurisdiction.

Given the clear stipulation of the statute and the rules Rule. 13(1) Rule 13 ,of the(Parliamentary and County) Petition Rules 2017the petitioner is required to deposit security of costs within 10 days of filing the petition. The petitioner failed to do so and going by his submissions he has no intention of doing so.

The petitioner had an intention of withdrawing his petition but he failed to adhere to the legal requirements. As failure to pay security for costs goes to the root of the jurisdiction of the court, this petition is hereby dismissed.

On the issue of costs the petitioner submitted that the respondents were entitled to minimal costs as they had not filed their responses to the petition and that they only attended court twice.

The respondents on the other hand submitted that they were entitled to costs as they had prepared pleadings, conducted research and travelled to attend court.

On the issue of costs it is a cardinal principle of law that costs followevents.

The petitioner by filing this petition has caused the respondents to incur expenses which they would not have incurred were it not for the petition. These expenses included those incurred in instructing counsels, preparing responses to the petition, submissions, conducting research and attending court. For these reasons the court finds that the petitioner is liable to meet the costs that the respondents have incurred as a result of the petition.

The upshot of the foregoing is that this petition is dismissed with costs to the respondents.

A certificate Under S. 86(1) of the Election Act to issue forthwith to the Chairperson IEBC and the Speaker County Assembly, Kiambu.

Right of Appeal 30 days.

Ruling delivered in open court in the presence of:-

Anambo holding brief for Kimani for the petitioner.

Mungai for the 1st respondent and Munene for the 2nd and 3rd respondents.

DATED THIS 29th DAY OF November 2017

HON. T. W. MURIGI

CHIEF MAGISTRATE