[2017] KEHC 917 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION NO. 25 OF 2017

HAROLD KIMUGE KIPCHUMBA...................................PETITIONER/APPLICANT

VERSUS

INDEPENDENT ELECTORAL & BOUNDARIES

COMMISSION….....................................................……………1ST RESPONDENT

GERTRUDE MUSURUVE INIMAH…........................................2ND RESPONDENT

RULING

Harold Kimuge Kipchumba, the Petitioner, has brought this application by way of Notice of Motion through his legal representatives, Rachier & Amollo Advocates, seeking orders of this court to bar the 2nd Respondent from appearing or acting as a party in these proceedings; to declare paragraphs 14 – 40, all inclusive, of the Petition dated 13th September 2017 as unopposed and admitted by the respondents and costs of the application. The application is brought under Rule 11 of the Elections (Parliamentary and County Elections) Petitions Rules 2017 (Elections Petitions Rules) and Order 2 (11) of the Civil Procedure Rules. The grounds in support of the application are found on the face of the application and also in the supporting affidavit sworn by the Petitioner. In summary the grounds in support of the application are that the respondents were served with the Petition filed on 13th September 2017 by way of newspaper advertisement on 16th September 2017; that the respondents were required to file responses in opposition of the Petition within 14 days after service; that the 1st Respondent filed a response to the Petition on 21st September 2017 but the 2nd Respondent did not file a response although a notice of appointment of advocate was filed; that the 1st Respondent has failed to deny or traverse averments of facts in paragraphs 14 to 40 of the Petition therefore admitting them.

In addition to the grounds in support of the application, Mr. Arwa for the Petitioner made oral submissions in support of the application. He submitted that the application raises two fundamental issues. Firstly, that by failing to file the response within the time stipulated under Rule 11 of the Elections Petitions Rules the 2nd Respondent lost the right to challenge the Petition and that this court has no discretion to interfere with the legal timelines within which the Responses were to be filed. Mr. Arwa cited the case of Ferdinard Ndung’u Waititu v Independent Electoral & Boundaries Commission (IEBC) & 8 others [2014] eKLR and Peter Gichuki King’ara v Independent Electoral & Boundaries Commission (IEBC) & 2 others to support this argument.

Secondly, Mr. Arwa submitted that it is not clear whether paragraphs 14 to 40 of the Petition are denied or admitted by the 1st Respondent because these paragraphs are not specifically denied or traversed in the Response filed by the 1st Respondent. He submitted that Rule 11 (5) of the Election Rules is couched in mandatory terms to the effect that a response to a petition shall respond to each claim made in the petition. Counsel cited several cases including Raghbir Sing Chatte v National Bank of Kenya Limited [1996] eKLR and J. P Machira t/a Machira & Company Advocates v Wangethi Mwangi & another [1998] eKLR to support his submissions that each allegation of fact which is not admitted must be specifically denied and must not be evasive and obscure.

The application is opposed by the respondents. The 1st Respondent filed three grounds of opposition to the effect that the 1st Respondent’s Response to the Petition traverses the issues raised in paragraphs 14 – 40 of the Petition and no admission is implied; that this application is meant to secure a judgment on admission despite the Response showing a traverse and denial of the issues raised in the Petition and that the application is meant to obtain the final judgment at the interlocutory stage.

In addition to the grounds of opposition, Mr. Githumbi made oral submissions the gist of which is that the Response of the 1st Respondent has denied and traversed the issues raised in the Petition and specifically referred to paragraph 22 of the 1st Respondent’s Response as traversing the issues raised in the Petition. Mr. Githumbi further submitted that the request for particulars and statement of issues by the Petitioner to the 1st Respondent presumes there is joinder of issues and that if the application is allowed it would amount to determination of the Petition before the court hears the matter substantively. Two authorities have been cited in support of the 1st Respondent’s Response, namely: Kenya Commercial Bank Ltd v Hon. Justice Nicholas Ombija [2015] eKLR and Blue Shield Company Ltd v Alice W. Kariuki & Another [2012] eKLR.Mr. Githumbi asked the court to dismiss the application and hear the matter substantively.

The 2nd Respondent filed Notice of Preliminary Objection and a Response to the Application and a Replying Affidavit sworn by the 2nd Respondent. The Notice of Preliminary Objection was withdrawn after counsel for the 2nd Respondent Ms Pekke was alerted that it was based on the draft legislation. The 2nd Respondent is saying that after she became aware that a Petition had been filed against her through the newspaper advertisement on 16th September 2017, she instructed her advocate; that the advocate filed a Notice of Appointment and visited the High Court Registry dealing with election petitions on 22nd September 2017 to collect copies of the Summons and the Petition as asked to do by the newspaper advertisement; that they failed to secure copies of the pleadings on that day; that they returned to the Registry on 25th September 2017 but they were not given access; that counsel for the 2nd Respondent wrote to the Deputy Registrar on 26th September 2017 asking to be supplied with the pleadings (letter attached to the Replying Affidavit of the 2nd Respondent and marked “G11”) and made the requisite payments; that they managed to get the copies of the pleadings on 4th October 2017 and started preparing the Response to the Petition and that on the same date they were served with notice of mention of this case.

Ms Pekke for the 2nd Respondent told the court that the Response is ready and asked the court in the interest of justice to allow the 2nd Respondent to file it and hear the matter substantively. She also asked the court to dismiss the application because it seeks to determine the Petition at the preliminary stage.

I have read with care all the pleadings, submissions and cited authorities. At the outset I wish to correct that Rule 11 of the Elections Petitions Rules has a latest amendment contained in Legal Notice No. 117 of 2017 to the effect that a respondent who wishes to oppose a petition may file a response within seven (7) days after service. During the hearing of this application it came to my attention that counsels were referring to the amended Rule 11 which required filing of the response within fourteen (14) days. Counsels were referring to amended Elections Petitions Rules contained in Legal Notice No. 105 of 2017. Towards the General Elections in the course of this year, there has been a flurry of amendments to the electoral laws and it is easy to miss out on some of these amendments.

I wish also to comment on the applicable law in respect of electoral disputes. I have noted that this application is brought under Rule 11 of the Elections Petitions Rules and Order 2 Rule 11 of the Civil Procedure Rules. It has been stated time and again in various decisions including Ferdinard Ndung’u Waititu case cited by the Petition in this application that the rules of procedure governing ordinary civil and criminal cased are inapplicable in electoral matters unless where they are specifically imported. See also Murathe v Macharia [2008] 2KLR (EP) 244 and Muiya v Nyagah & 2 others [2008] 2 KLR (EP) 493.

Order 2 of the Civil Procedure Rules is about admissions and denials. It provides that allegations of fact made by a party in his pleadings shall be deemed to be admitted by the opposing party unless it is traversed by that party in his pleading. A careful reading of the Elections Petitions Rules shows that Order 2 is not one of the civil procedural rules imported into procedural rules dealing with electoral disputes. In my view therefore courts should be reluctant to employ civil procedure rules to resolve issues contained in electoral disputes unless where the same is specifically stated. However, although this is the case, it makes practical sense for any party to a dispute, electoral disputes included, to specifically deny or traverse issues raised by the other party unless these are admitted.

On the first limb of the application before me, two issues emerge: did the 2nd Respondent lose her right to challenge the petition due to her failure to file Response to this petition, and does this court have discretion to intervene and grant leave to the 2nd Respondent to file the Response to the Petition out of time? According to the Petitioner, the answer to the first question is in the affirmative and to the second question in the negative.

Before I determine these two issues I wish to mention that the authorities cited by the Petitioner did not specifically address the two issues raised here. The sections of the Ferdinard Ndung’u Waititu case referred to and read out in court by counsel for the Petition seem to emphasize the applicable law in matters electoral disputes while the Peter Gichuki King’aracase is about jurisdiction of the Court of Appeal in handling interlocutory appeals informed by the urgency in determining electoral disputes. Secondly, the other two authorities – Raghbir Singh Chattecase and J. P Machira cases both cited above, are about admissions and denials. They are not election related cases. They are cases that were decided under a different regime, the civil procedural rules.

The 2nd Respondent was required under the Elections Petitions Rules to file a Response within seven days after service of the Petition. She did not do so. She has explained the circumstances that intervened making it impossible for her to comply. The Petitioner says that the 2nd Respondent cannot now seek leave because firstly she squandered her right to participate in this matter by her own failure to comply and secondly because this court has no discretion to intervene in the matter.

Rule 11 (8) of the Elections Petitions Rules states 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.

However, Rule 19 (1) of the same Rules allows election courts some latitude. It provides thus:

Where any act or omission is to be done within such time as may be prescribed in these Rules or ordered by an election court, the election court may, for the purposes of ensuring that injustice is not done to any party, extend or limit the time within which the act or omission shall be done with such conditions as may be necessary even where the period prescribed or ordered by the court may have expired.

Rule 11 (8) read alone and applied strictly would, in my view, deny parties justice even in cases where there are extenuating circumstances, the argument (as argued by the Petitioner) being that it is couched in mandatory terms. In my view a party may fail to comply with this provision due to circumstances that he/she had no control over. I think this is what was intended to be cured by Rule 19 (1) and in my view the intention was to give court latitude in extending or limiting time in a case in circumstances that deserve intervention of the court. But to understand Rule 19 clearly, it is prudent to read Rule 19 (2). It limits the discretion of the court allowed under sub-rule (1) by stating that the discretion to extend or limit time within which the act or omission shall be done shall not apply to the period within which a petition is required to be filed, heard or determined. Sub-rule (2) of Rule 11 omits the time within which a response to the petition shall be filed and I think this strengthens the argument that the intention was to give the court discretion to act as appropriate.

I have considered these provisions. I have also considered the grounds in support of the application and submissions in support of this issue. I have also considered the reasons advanced by the 2nd Respondent. While I feel that the 2nd Respondent or her counsel did not act in an expeditious manner to comply with the law, it is my considered opinion that this court has discretion to extend or limit time within which an act or omission ought to be done. In exercising that discretion, the court must take into account the objective of the Elections Petitions Rules to facilitate the just, expeditious, proportionate and affordable resolution or elections petitions as well as ensuring that by so doing no prejudice shall be occasioned to any party.

On the first issue raised in this application therefore, I will and do hereby exercise the discretion allowed this court under Rule 19 (1) of the Elections Petitions Rules and grant leave to the 2nd Respondent to file the her Response to the Petition. In my considered view no prejudice shall be occasioned to the Petitioner by this order. For avoidance of doubt and given that this court was told that the Response of the 2nd Respondent has been prepared and is ready, I order that the 2nd Respondent shall file the Response by the close of the day tomorrow the 10th November 2017.

On the second issue, I have considered the grounds and submissions in support of the same. To my mind the issue is simply that the 1st Respondent has not specifically denied or traversed the issues raised in paragraphs 14 – 40, all inclusive, of the Petition. I have also considered grounds of opposition and submissions. Paragraphs 14 – 40 of the Petition contain, among others, the facts giving rise to the petition and the contraventions and violations of the law complained of by the Petitioner. Specifically, paragraphs 1, 2 and 3 are descriptive paragraphs. Paragraphs 4 to 13 contain statements of facts on the law governing this dispute. Paragraphs 14, 15, 16, 29 and 30 accuse the 1st Respondent of usurping and subverting the sovereign power of the people by choosing representatives for them. Paragraphs 17 all the way to 28 and 31 to 33 give the background of the circumstances giving rise to this petition, the political rights guaranteed in the Constitution of Kenya 2010 and the manner these rights are actualized. Paragraphs 34 to 40 accuse the 1st Respondent of contravening the law by denying the Petitioner his right to fair administrative action.

The Petitioner accuses the 1st Respondent of failing to specifically traverse all the facts pleaded. The Response of the 1st Respondent traverses in general terms, under paragraph 2, all the allegations of law contained in the Petition. The Response specifically admits paragraphs 1 – 12 of the Petition and partly admits paragraph 13. It is silent on the other paragraphs of the Petition. However, paragraph 22 of the Response denies violating the legitimate expectation of the Petitioner, violating the Constitution and the Elections Act and usurping and subverting the will of the people. The 1st Respondent claims that it acted within the dictates of the law and therefore the Petition is misconceived.

My careful reading of the Petition and the Response of the 1st Respondent reveals that the 1st Respondent is not admitting the allegations by the Petitioner. It may seem so by reading paragraph 23 (a) (b) and (c). But in my view this is not the case. Further to this, it is my considered opinion that if this court were to allow this application to succeed, this Petition would be determined conclusively at this preliminary stage thereby denying the other parties a chance to be heard. In my view this would cause injustice to them.

My conclusion of this issue is that in the interest of justice and given the nature of the dispute, it would be prejudicial to the 1st Respondent if this court were to agree with the Petition and grant the prayers he is seeking. The prudent thing to do to ensure that every party has his/her/its day in court is to hear this matter substantively and make appropriate orders based on the law and the evidence that shall be made available to the court. I therefore decline to grant the prayers sought in the Notice of Motion dated 16th October 2017 and filed on 17th October 2017. The effect of this order is that the application fails in its entirety and is hereby dismissed. I hesitate to make an order as to the payment of costs and therefore each party shall bear the costs of this application. Orders shall issue accordingly.

Delivered, dated and signed this 9th day of November 2017.

S. N. Mutuku

Judge