[2013] KEHC 6070 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Election Petition 11 of 2013 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]

IN THE MATTER OF: THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF:THE ELECTIONS ACT, 2011: SECTIONS 75; 76(1) (A), (2), (3); 77; 79; 80; 82; 86 AND 87

AND

IN THE MATTER OF:THE ELECTIONS (NATIONAL ASSEMBLY AND COUNTY ELECTIONS) PETITION RULES 2013, RULES 3(B); 4; 5; 6(1)(A); 8;9; 10; 11; 12; 13; 21; 22; 33 AND 38

AND

IN THE MATTER OF:THE ELECTION OF MEMBER OF THE NATIONAL ASSEMBLY, BARINGO CENTRAL CONSTITUENCY HELD ON THE 4TH DAY OF MARCH, 2013

BETWEEN

HOSEA MUNDUI KIPLAGAT …………………………………...............................................…………………PETITIONER

VERSUS

SAMMY KOMEN MWAITA……………………....……….…….....................................................……..1ST RESPONDENT

THE INDEPENDENT ELECTORAL ANDBOUNDARIES COMMISSION (IEBC).................................2ND RESPONDENT

MOSES SIMIYU NYONGESA (RETURNING OFFICER,BARINGO CENTRAL CONSTITUENCY)....3RD RESPONDENT

RULING

Background

1. Following the elections held on 4th March 2013, the 1st respondent was subsequently declared the duly elected member of National Assembly for Baringo Central constituency. The Petitioner who had contested for the same seat filed a Petition dated 8th May 2013, questioning the validity of the election.

The Application for Striking out of Petition

2. The 1st Respondent (the Applicant) has now moved to Court to challenge the Petition. This Notice of Motion Application dated and filed on 8th May 2013, is brought under Rules 3(a); 5(1) (a)&2; 12, 17(d)& (k) of the Elections (Parliamentary and County Election) Petition Rules, 2013. It is supported by the Affidavit of Sammy Komen Mwaita, and is seeking for orders that the Petition against the 1st Respondent be struck out and in the alternative, that the Affidavits sworn by Hosea Mundui, Kiplagat, the Petitioner and Matthew Boit Ngetich and Wilson Kimunge Chesire, the Petitioner’s Witnesses be expunged from the court records.

3. The Application is based on grounds that the Petition is incompetent and fatally defective for not being filed under the Elections Act, No. 24 of 2011 and the Elections (Parliamentary and County Election) Petition Rules, 2013 (hereinafter ‘the Rules)as required by the law, and that in fact, it has been filed in violation of the Rules, thus rendering it null and void ab initio.

4. The Applicant also avers that the incompetence and defect in the Petition is substantive and not a mere procedural technicality. It goes to the root of the Application rendering it incurably defective and it prejudices the Respondents’ ability to respond to the legal matters raised in the Petition. That election petitions being founded on statute, cannot stand without a proper statutory basis.

5. The Applicant further contends thatthe witness statements are vexatious, scandalous, frivolous and injurious to the 1st Respondent, his family and the entire residents of Baringo Central Constituency and that the prayers sought cannot stand since they are based on falsehoods, hearsays and lack of particulars. Lastly, that a party is bound by its pleadings and the Petition as filed is an embarrassment to the Court; that it will be in the interests of justice to strike out the Petition.

6. The 2nd and 3rd Respondents supported the Application and in this regard, filed an Affidavit byMoses Simiyu Nyongesa, the 3rd Respondent sworn on 11th May 2013. He deposes that the results being challenged were declared on 5th March 2013 and a Certificate issued to the 1st Respondent as the duly elected Member of the National Assembly for Baringo Central and further that the 3rd Respondent signed and dated Form 36 on 5th March 2013. It is further deposed that before the results were declared, party agents were given an unsigned copy of Form 36 to confirm the accuracy of the results, thus, the Form 36 attached to the Petition is such an unsigned copy of Form 36 given to the agents. It is denied that the signature in the unsigned copy of Form 36 belongs to the 3rd Respondent even though the results in the form are accurate. The 3rd Respondent deposes that the allegations against the IEBC are vague and embarrassing.

7. The Petitioner, in response, filed Grounds of Opposition dated 14th May 2013 in which he states that the Application is vague, ambiguous and oppressive as it fails to cite which provisions of the law, if any, have been offended, and is therefore an abuse of the process of court. The Petitioner further states that the overriding objective of the Court to deliver substantive justice to all parties should be upheld and that the Application be dismissed with costs to the Petitioner.

Applicant’s Case

8. At the hearing of the Application, the 1st Respondent was represented by Mr. Adere assisted by Ms. Barasa while the 2nd and 3rd Respondents were represented by Mr. Karanja. Mr. Mutai appeared on behalf of the Petitioner. Mr. Adere submitted that the Petition is incompetent for failing to comply with the prescribed form under the Rules. Hepointed out that the petition is defective in its form in that its heading fails to indicate that it is an election petition. He further submitted that the Petition fails in conforming to the prescribed form for referring to ‘National Assemby’ in its heading instead of the ‘National Assembly.’

9. It was also submitted for the 1st Respondent that the Petition does not meet the standards set out in Rule 10 of the Rules 2013 on content of an election petition. Mr. Adere pointed out thatthe name of the Petitioner in the title is ‘Hosea Mundui Kiplagat’ while in the body of the Petition the Petitioner is said to be of one ‘Hosea Mundui Kiplagati.’ That, accordingly, describes or refers to a person other than the one in the title and therefore was a name and address of a different person.

10. Mr. Adere submittedthat the Petition severally makes reference to 7th March 2013 as the date when the election results were declared while in essence the correct date was 5th March 2013, as indicated in the Respondent's response in the Affidavit of Moses Simiyu Nyongesa and supporting documentation. That alone, he submitted, supports the prayer for striking out the petition. He referred me to the case of Chesire -vs- Ruto and 2 Others [2008] 2 KLR (EP) 526 where the date of the petition was different from that contained in the application for striking out the petition. The court found that in effect there was no application to strike out the petition filed by the Petitioner since the date cited was a date other than the one in which the party was elected.

11. The Petition was also challenged on the basis of signature as it was signed by Advocates for the Petitioner and not by the Petitioner himself. Learned Counsel for the Applicant submitted that as per Rule 10(3)(d), it is a mandatory requirement that the petition shall be signed by a person duly authorized by the petitioner. He submitted that M/S Kanchory and Co. Advocates for the Petitioner do not meet the requirements of the law unless it can be demonstrated that the Advocate was duly authorized. The Advocate, the learned Counsel reasoned, must be appointed specifically for purposes of signing the petition by way of an appointing instrument which must be filed alongside the petition to give notice to the respondent of such appointment. He summed that the Rules specifically refer to “a person” and not an advocate. In support of this reasoning, he relied on the case of Jahazi v. Cherogony[2008] 1KLR (EP) 273where it was stated that by not signing the petition, the petitioner did not take responsibility for the content of the petition against the 2nd respondent.

12. The Applicant, in the alternative, sought for prayers that certain paragraphs in the Petition and Witnesses’ Affidavits be struck out.Mr. Karanja for the 2nd and 3rd Respondents, while associating himself with the submissions of Mr. Adere for the 1st Respondent, added that the Petitioner has made allegationsagainst persons who were not included as Respondents. Thus, it would be against the rules of natural justice to go to trial and determine matters alleged without the presence of the persons complained of. Counsel referred to the case of Murathe v. Macharia [2008] 2 KLR (EP) 244where the court struck out the entire petition since the person whose conduct was complained of was not included as a party. The learned Counsel contended that in spite of the matters being highlighted, there has been no attempt by the Petitioner to supply further particulars.

Respondent’s/Petitioner’s Case

13. Mr. Mutai for the Respondent/Petitioner relied on the Grounds of Opposition and submitted that the issues raised in the Application were not ripe for deliberation. On the issues of form of the Petition, learned Counsel urged that the same did not go to the root of the Petition as to render it a nullity. Mr. Mutai took recourse in Article 159 (d) of the Constitution and Section 80 (d) of the Elections Act and urged that all parties be afforded an opportunity to ventilate the merits of the Petition for substantial justice to be done. He reiterated that the Petition has substantially complied with the law and ought not to be struck out on the basis of technicalities. Similarly, the issues raised by the 2nd and 3rd Respondents could only be determined by hearing the Petition. He urged that the Application be dismissed.

Determination

I have framed the issues for determination as follows:

a)Whether the Petition as filed offends the prescribed Form EP1 in the First Schedule of the Rules,

b)Whether the Petition offends the provisions of Rule 10 (1) (a) and (c) of the Rules 2 on the prescribed content of an election petition,

c)Whether non-joinder of persons complained of in the Petition is a ground for striking out the affected paragraphs,

d)Whether the Petition is properly signed and whether an Advocate is a person duly authorized as contemplated by Rule 10(3)of the Rules.

Whether the Petition as filed offends the prescribed Form EP1 in the First Schedule of the Rules

14. On the issue that the Petition offends the prescribed Form EP 1 in its heading and reference to ‘National Assemby’.Rule 8 (1) (b) requires that:

“Anelection petition shall —

be in Form EP 1 set out in the First Schedule.”

The Petition makes reference to the Constitution of Kenya and includes other applicable laws, namely, the Elections Act and the Rules and Regulations. Thus, such inclusion does not offend the substance of the Petition. It is the Constitution of Kenya which sets the bedrock upon which other laws, including electoral laws are premised. It provides the fundamental principles which make it possible to entertain this Petition. Article 87(1)in particular provides that:

“Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.”

The misspelling of the words ‘National Assembly’ is an error apparent on the face of the record of pleadings that does not erase the intended description by the Petitioner and the election being impugned. The position being referred to can still be understood to be as that of the National Assembly. This is a minor, curable error that does not have any bearing on the substance of the Petition.

15. Furthermore, the prescribed form is a matter of procedure that the Court is under duty to ensure that undue regard thereof is not accorded at the expense of substantive justice. Accordingly, as per Article 159 (2) (d)of the Constitution,

“in exercising judicial authority, the courts and tribunals shall be guided by the following principles—

…justice shall be administered without undue regard to procedural technicalities”

The matters raised on the form of the Petition fall within the category of technicalities that should not take precedence over substantive matters.

Whether the Petition offends the provisions of Rule 10 (1) (a) and (c) of the Rules on the prescribed content of an election petition

16. The Applicant contended that the Petition does not comply with Rule 10 of the Rules on content of a Petition by not providing the correct name of the Petitioner and the date the results of the election being challenged were declared.Rule 10 (1) (a) requires that an election Petitionshall state:

“a) the name and address of the Petitioner.”

17. The description of a party in a petition, is a substantive and mandatory aspect that if omitted goes to the root of the Petition. A party to any court proceedings must be clearly described. However, in my view, the description of the Petitioner as ‘Hosea Mundui Kiplagat’ on one hand and ‘Hosea Mundui Kiplagati’ on the other hand, creates no doubt that it is one and the same person. It has not been argued that there was another contender in the elections known as ‘Hosea Mundui Kiplagati’to whom this Petition might refer and therefore raise confusion as to the actual Petitioner. This, again, is an error apparent on the face of the record that has no effect on the substance of the Petition and therefore, this ground does not suffice to render the Petition incompetent.

18. With regard to the date that the election results were declared, the Applicant submitted that it would be in futility to entertain a Petition which is challenging non-existent results. The issue is whether the reference to 7th March 2013 as the date the results were declared essentially affects the Petition as to render it materially defective. This issue turns on answering the question as to whether the disputed elections are effectively described as to be clear on which elections are being referred to. Rule 10 (1)provides that:

“An election petition filed under Rule 8, shall state —

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

(c) the results of the election, if any, and the manner in which it has been declared;

(d) the date of the declaration of the results of the election..”

19. The provisions set out above describe the election results in dispute as the subject matter to be adjudicated upon. A further question thus follows: does an error in the descriptive aspect of paragraph (d) affect the described subject matter as to render it unclear or ambiguous as far as the reference to the election is concerned? Paragraph 1 of the Petition encapsulates the subject matter of the Petition thus,

“The Petitioner states that the election for Member of National Assembly for Baringo Central Constituency (the disputed election) was held on the 4th day of March in which the Petitioner and CHEMWETICH LANGAT, JOHN KIPRONO CHEPKWONY, JOSHUA CHEPYEGON KANDIE, MANYARIKY JELAGAT LEAH, RAPHAEL KIPTOO KOMOSOP AND SAMMY KOMMEN MWAITA (1st Respondent) were candidates”

20. The reference to 7th March 2013 as the date the election results were declared, does not, in essence alter the fact that the election being impugned is the election for the Member of the National Assembly in Baringo Central Constituency held on 4th March 2013. Even in the absence of the subsequent paragraph, the Petition would be complete. The erroneous reference to the date of declaration of the results has not changed the subject matter of the Petition. The description cited above, in isolation, aptly sets out the subject matter, thus the error in question is not grave as to go to the root of the Petition and render the same fatally defective. It therefore remains a matter of form which does not rise above the substance of an election Petition. This ground also fails to meet the threshold for allowing the striking out of the Petition.

Whether non-joinder of persons complained of in the Petition is a ground for striking out the affected paragraphs.

21. It was the submission of the Respondent that the Petitioner made allegations against persons who were not enjoined as parties, and thus, could not respond to the matters alleged. The 1st Respondent prayed that the offending paragraphs be struck off in the alternative.

22. Rule 2of the Rules defines a Respondent in relation to an election petition, as,

“(a) the person whose election is complained of;

(b) the returning officer;

(c) the Commission; and

(d) any other person whose conduct is complained of in relation to an election.”

23. It is not in dispute that the Petitioner has made allegations on persons who have not been included as respondents in the Petition. Nevertheless, some of the persons adversely mentioned have been included as some of the Petitioner’s witnesses, to counter the allegations made. With regard to the Affidavit of the Mathew Boit Ngetich, the conduct complained of in paragraphs 3-6 relates to Hillary Mwaita and Richard Kimorei who have sworn an Affidavit in support of the Response by the 1st Respondent. Similarly, the paragraphs sought to be struck off in the Affidavit of Wilson Kimunge Chesire relate to the said 1st Respondent’s witnesses. The wife of the 1st Respondent who is adversely mentioned in the Petition also has sworn an Affidavit in support of the 1st Respondent’s Response. With this in mind, I note that there will definitely be an opportunity for them to answer to any facts complained about them, and can thus be cross-examined by the Petitioner. The allegations made against the mentioned parties therefore remain matters in issue which the Petitioner will be put to strict proof, for he who alleges must prove. On this basis alone, I am inclined to uphold the contents of the Petition in light of the highlighted paragraphs since the inclusion of the mentioned persons as in support of the Response by the 1st Respondent seeks to counter the allegations made against them.

Whether the Petition is properly signed and whether an Advocate is a person duly authorized as contemplated by Rule 10(3)

24. It was submitted for the Respondent that the Petition was defective as it was not properly signed as required by the Rules. The provision of the law on this issue is Rule 10 (3) (a) which provides that:

“An election petition shall—

be signed by the Petitioner or by a person duly authorized by the Petitioner;”’

25. The issue that I must determine in this regard is whether an Advocate is a person duly authorized to competently sign the Petition on behalf of the Petitioner. Firstly, learned Counsel for the Applicant referred to Rule 7 to emphasize the need for express authorization to sign a petition.The reading of this provision is to the effect that a person who has been declared as duly elected, may, in anticipation of a likelihood of a petition being filed, file a notice in writing appointing an advocate. This provision is first of all optional and may be applied in anticipation of a petition to enable the respondent have notice should a petition be filed. Thus, the Applicant cannot use this provision to cite the meaning of ‘duly authorized’. Further, the citation of Order 51 Rule 13of the Civil Procedure Rulesin submissionsmade on behalf of the Applicant does not apply to the issue in question. Order 51 applies to applications to the Court while the matter at hand is an election petition governed by special Statute and rules of procedure.

26. Back to the issue at hand, I have taken recourse to various definitions as follows:

The Black’s Law Dictionary 9th Edition provides the following definitions:

“duly - in a proper manner, in accordance with legal requirements.”

“Authority: 1. The right or permission to act legally on another’s behalf; especially the power of one person to affect another’s legal relations by acts done in accordance with the other’s manifestations as assent; the power delegated by a principal to an agent”

The Concise Oxford English Dictionarydefines ‘authority’ and ‘duly’ as follows:

“Authorize: to give official permission for or approval to.”

“Duly: in accordance with what is required or appropriate, as might be expected.”

The Advocates Actdefines a‘client’ to include “any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any cost.”

The Civil Procedure Rules in Order 9, Rule 1provide that, any application to or appearance or act in any court required or authorized by the “law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf.Order 2, Rule 16further provides that, “every pleading shall be signed by an advocate, or recognized agent (as defined by Order 9, rule 2), or by the party if he sues or defends in person.”

A cumulative reading of the above cited provisions therefore leads me to the conclusion that an advocate fits the description of a person duly authorized, thus, the Petition cannot in this regard be rendered incompetent.

27. The Applicant did cite to me the case of Jahazi v Cherogony.One of the preliminary issues raised in this Petition was that the Petition was not personally signed by the Petitioner, thus, it was invalid and ought to be struck out. In this case, the court held that under the applicable Rules, the requirement of signature by the petitioner was mandatory and not a mere formality. The Court thus reasoned,

“The petition is signed by Adembesa & Co. purporting to be advocates for the petition. it is difficult to envisage how that could validly be so. An advocate, should the petitioner decide to engage one, is appointed in writing when the petitioner files his petition. The requirement that a petition be signed by a petitioner is not a mere formality. Equity demands that a petitioner assumes responsibility for his petition by signing it…..this petition having not been signed by the petitioner it is not properly before the court. The petition is dismissed.”

28. Even so, the applicable law, then, was very specific in Rule 4 (3) of the National Assembly Elections (Election Petition) Rules made under the now repealed National Assembly and Presidential Elections Act, (Cap. 7)which required that a petition be signed by the petitioner. The law has since changed and now a petition can be signed by another person on behalf of the petitioner if duly authorized to do so. The strict application of the law as it then was, led to the effect that no other person could sign on behalf of the petitioner even when expressly authorized to do. This scenario was manifested in the case of Moi vs. Matiba [2008 1KL (EP) 622where Mr. Matiba's petition was signed by his wife who held a power of attorney but nevertheless the court held that she had no mandate.

29. According to the Heydon’s Case [1584] 76 ER 637 in this regard it was held that

“…for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st What was the common law before the making of the Act.

2nd What was the mischief and defect for which the common law did not provide.

3rd What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealthand

4th the true reason of the remedy; and then the office of all the Judges is always to make suchconstruction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.”

30. The express inclusion that a petition could be signed by the petitioner or a person duly authorized by the petition, in my view, seeks to cure the mischief that resulted in the strict application of the then applicable rules. The defect being cured, the current applicable rules allow for another party to sign on behalf of the petitioner, thus, justice would not be defeated merely on the ground that the petition was not personally signed by the petitioner.

31. A purposive approach also demands that, a matter of form, as in the signature of the Petition, should not be elevated above the substantive aspect of the pleading. The Court ought to be alive to the greater need to preserve the interests of justice over matters of form that do not outweigh the substance of issues before it. This was aptly captured in Microsoft Corporation v Mitsumi Computer Garage Limited & Another [2001] KLR 470whenRingera J., held that,

“Deviations from or lapses in form and procedure which do not go to the jurisdiction of the Court or prejudice the adverse party in fundamental respect ought not to be treated as nullifying the legal instruments thus affected. In those instances, the Court should rise to its higher calling to do justice by saving the proceedings in issue.”

32. That higher calling, in my view, is further espoused by the Constitution in Article 159 (d) that, the Court be guided by the principles that preserve the interests of justice including the following principles:

“(a) justice shall be done to all,irrespective of status;

(b) justice shall not be delayed;

(c)….

(d) justice shall be administered without undue regard to procedural technicalities; and

(e) the purpose and principles of this Constitution shall be protected and promoted.”

And further captured by the Rules, 2013 under Rule 4 which provides that,

“(1) The overriding objective of the rules shall be to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act.

(2) The Court, shall, in exercise of its powers under the Constitution and the Act or in the interpretation ofthe provisions in these Rules seek to give effect to the overriding objective …”

33. In this regard, I associate myself with the words of the Supreme Court in Raila Odinga and others v Independent Electoral and Boundaries Commission and 3 OthersNairobi Petition No. 5 of 2013 [2013]eKLRthat,

“… a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the Court as an agency of the processes of justice is called upon to appreciate all the relevant circumstances and the requirements of a particular case, and conscientiously determine the best course.”

34. While the Court has the discretion, depending on the circumstances of each case, to strike out an election petition, the underlying consideration, as exposited in the case of D.T. Dobie & Company (Kenya) Limited v. Muchina [1982] KLR 1, is that,

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”

35. Striking out a pleading is a drastic and draconian measure that I am not inclined to grant for the interests of justice to be fully served. In the interest of justice, the matters raised in the Petition point to triable issues that merit an opportunity to be ventilated. I therefore, decline to grant the orders sought and the Notice of Motion Application dated 8th May 2013 is dismissed.

SIGNED DATED and DELIVERED in open court this 3rd day of June, 2013.

L. A. ACHODE

JUDGE

In the presence of:

Mr. Kanchory and Mr. Mutai for the Petitioner

Mr. Karanja for the 2nd and 3rd Respondents

Mr. Mengich, Ms. Barasa and Mr. Adere for the 1st Respondent

Andrew Omwenga Court Clerk

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