[2023] KECA 1634 (KLR)

Independent Election and Boundaries Commission IEBC & 2 others v Mugo (Civil Application 64 of 2018) [2023] KECA 1634 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KECA 1634 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Civil Application 64 of 2018

W Karanja, J Mohammed & AO Muchelule, JJA

November 10, 2023

Between

Independent Election and Boundaries Commission IEBC

1st Applicant

The Returning Officer, Manyatta Constituency Embu County

2nd Applicant

John Muchiri Nyaga

3rd Applicant

and

Justus Kinyua Mugo

Respondent

(Being an application to strike out Notice of Appeal dated 6th March, 2018 from the decision of the High Court at Embu (R. Limo, J.) dated 27th February, 2018 in Election Petition No. 2 of 2017 Election Petition 2 of 2017 )

Ruling

1. This is an application by Independent Election And Boundaries Commission (IEBC) and the Returning Officer, (the 1st and 2nd respondents in the main appeal) against Justus Kinyua Mugo (the appellant in the main appeal) expressed to be brought under Rule 18(1)(2) of the Court of Appeal Election Petition Rules and Section 85A (a) and (b) of the Elections Act. The applicants entreat the Court to strike out the Notice of Appeal dated and filed on 6th March, 2018. The Notice of Appeal was duly served on the applicants on 9th March, 2018. The Record of Appeal was, nonetheless, not lodged in Court within the prescribed time, hence the present application. Justus Kinyua Mugo is the respondent herein (the appellant in the intended appeal)

2. The application is supported by the affidavit of Joe Kathungu, learned counsel for the applicants dated 31st May, 2018. Counsel deposes that as at the time the application was filed, they had not been served with the said record. Indeed, the notice of motion elicited no response from the respondent, by way of grounds of objection or replying affidavit in spite of service of the same on their counsel on record. The respondent was served with the hearing notice for the hearing of the application on 27th September, 2022 at 12. 23 pm, but he neither filed submissions as directed by the Court, nor did he appear in Court to defend the application.

3. When the matter came up for plenary hearing before us on 17th October 2022, learned counsel Mr Heyi, appeared for the applicants and informed the Court that he was relying entirely on the written submissions filed in Court, and urged us to strike out the impugned notice of appeal.

4. We have considered the Notice of motion before us along with the submissions that buttress the grounds proffered in support of the application and the applicable law.

5. To start with, the application to strike out the Notice of Appeal is not opposed. The depositions in the supporting affidavit are, therefore, not controverted and are deemed to have been admitted.

6. We note that the Notice of Appeal was filed and served within the statutory timelines. However, it is not disputed that the respondent thereafter did not move the Court by lodging the Record of Appeal or seeking the leave of this Court to file the record out of time. It is clear to us that the respondent has lost interest in the appeal and other than clogging our systems, the continued pendency of the Notice of Appeal in question will not serve any useful purpose.

7. Accordingly, we find the Notice of Motion dated 31st May, 2018 merited.The same is hereby allowed and the Notice of Appeal dated 6th March, 2018 is hereby struck out. The applicants are awarded costs of this application.

DATED AND DELIVERED AT NYERI THIS 10TH DAY OF NOVEMBER, 2023W. KARANJA.................................JUDGE OF APPEALJAMILA MOHAMMED.................................JUDGE OF APPEALA. O. MUCHELULE.................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR