[2017] KEHC 2652 (KLR)

REPUBLIC OF KENYA

IN THE ELECTION COURT

AT MALINDI

ELECTION PETITION CAUSE NO. 6 OF 2017

IN THE MATTER OF THE ELECTIONS FOR THE SENATOR KILIFI COUNTY

AND

IN THE MATTER OF THE ELECTIONS ACT, 2011

AND

IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTRY ELECTIONS PETITION RULES, 2017

JACOB THOYA IHA .................................................................... .PETITIONER

VERSUS

1. INDEPENDENT ELECTORAL &

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

2. NELLY ILONGO THE KILIFI COUNTY

RETURNING OFFICER……………………………2ND RESPONDENT

3. STEWART MWACHRU

4. SHADRACK MADZAYO…………………………..3RD RESPONDENT

RULING

1. The 4th Respondent, has filed a Notice of Motion dated 29/9/2017 in which he seeks to have the petition struck out on a raft of grounds including and majorly that the petition dated at Malindi on the 5/9/2017 and served upon the Respondents by way of an advertisement was irregularly and fraudulently filed subsequently to another dated same day but at Kilifi and that no court fees was paid upon it being filed.

2. There are other grounds being that there are no malpractices alleged against the Forth Respondent who was duly elected and that the petitioners seek to nullify the election of the 3rd Respondent who was never a candidate but merely the County Returning Officer for Kilifi County.

3. The application was supported by the affidavit of the Forth Respondent sworn before Stephen M. Jumbale on 27/9/2017. The affidavit essentially reiterates the complaints and accusation against the petition as contained in the application then it exhibits some eight (8) documents.

4. The gist of the evidence is that affidavit is that the 4th Respondent came to learn about the petition on the 14th September 2017 through an advert in the Daily Nation of that day which advert notified the Respondent that they could pick copies of the petition from the Court Registry. That was after the 4th Respondent had been gazetted and took oath office on the 31/8/2017.

5. Having been notified of the petition against his election, the 4th Respondent appointed the advocate on record who filed a Notice of Appointment on the 15/9/2017 and attended the registry to obtain copies of the petition. It was the visit by the advocate at the Registry which revealed the existence of two petitions filed by the same petitioner against the same respondents the difference being only on the content and the place of dating. The two copies of petitions are exhibited as SMSM 4(a) and 4(b). The only other difference is that one petition, the one dated at Kilifi was paid for by revenue receipt exhibited as SMSM 4(c) on the 6/9/2017 while there is alleged to be no evidence of payment of court fees for the petition dated at Malindi.

6. Upon receipt of the copies of the two petitions, the 4th Respondents Advocate initiated correspondence with the Deputy Registrar by a letter dated 14/9/2017 and again on 18/9/2017. The 1st letter was evidently innocent merely seeking to know when the petition was filed and if the security deposit of Kshs. 500,000/= had been effected by the petitioner and if so when it was so effected. The first letter seems to have not elicited any formal reply but there are notes on the file by the Deputy Registrar to the effect that:-

“15/9/2017:

Applicant to peruse court

file and register for the details they seek.

Signed

DR”

7. It would appear that the 4th Respondents advocate thereafter perused the court file and were never satisfied. They then wrote the second letter on the 18/9/2017 and received by the court the same day. The letter was this time round more stern and said:-

“….upon perusal of the court records in compliance with notice of service of the petition herein appearing in the Daily Nation Newspaper of the 14th September 2017, it has come to our notice that there are apparently two different petitions filed against Hon Steward M.S. Madzayo our client herein albeit both dated 5th September 2017 and filed on 6th September 2017 respectively.

In light of the foregoing, we kindly but urgently request you to clarify which of the said two petitions on records that we are supposed to seek instructions and respond to in accordance with the rules”

8. That letter elicited instant reply from the court because on the same day, the Deputy Registrar responded and said:-

“On 6th September 2017, 9 petitions were filed by the firm of Gatundu & Company Advocates at about 11. 30 p.m. At the time of filing, there was a misunderstanding and commotion that night after filing it, another one was presented by a counsel from that firm.

They requested to file the fresh petition, which they did.Unfortunately due to time constraints, and the number of petitions being filed, they did not go with the court copy of the previous petition. This is what was mistakenly entered in our registers.

I confirm that there is only one petition in our files. You can peruse the court file to ascertain the same. The one in the court file is the proper petition.”(Emphasis added)

9. Those letters, in my reading and understanding, capture the fulcrum and the gist of the application by the 4th respondent by their application now under consideration.

10. That application has been opposed by the petitioner, who filed against it a Replying Affidavit sworn before JACKINE CHEPKRUI on 31/9/2017 and filed in 2/10/2017. That affidavit answers the pertinent question of the propriety of the petition at paragraph 7 in the following words:-

“7)…on 6th day of September 2017 at around 11pm whilst at the court precincts I met my then lawyer on record, Mr. Gatundu who was visibly drunk when he got to court. He inadvertently gave the registry officials the draft copy of my petition for purposes of assessment to enable me pay the court filing fees. A commotion ensued between me, the other petitioners and Mr. Gatundu who then ran away. At this juncture, Alice with whom all the Jubilee party aspirants were working with delivered the correct petition, which was signed by Mr. Binyenya on behalf of Mr. Gatundu and the assessed after intervention by the Hon Deputy Registrar and I paid the mandatory and requisite filing fees. Annexed herewith and marked “JTI 1’ is a true copy of my court filing receipt.’

11. From the two affidavits filed by both sides and the Registrar’s letter, what is not disputed is that on 6/9/2017 at about 11 p.m., according to the petitioner, or 11. 30 p.m., according to the Deputy Registrar, a petition was filed at the registry. Soon thereafter it was discovered to have been an erroneous copy or just a draft hence a need arose and a better copy was availed, signed and replaced or just substituted for the erroneous or draft copy. The fundamental question this court shall seek to determine is whether it was open for the petitioner with or without the concurrence of the Deputy Registrar or indeed the election court to retrieve a filed document and replace therefore a better copy. The second question is, depending on the propriety of said action, the standing of the subsequent petition filed, whether it stood in place of the initial petition.

12. In support of the application, the 4th Respondent filed a list of three(3) authorities dated 10/10/2017 while the petitioner filed his list of some five(5) authorities dated 10/10/2017 and another list dated 16/10/2017.

At the hearing of the application, parties were represented by;

Mr. Aboubakar for the Petitioner, Mr. Lumatete Muchai for the 1st, 2nd and 3rd respondents, while Mr. Kinyanjui and Ms Jadi appeared for the 4th Respondent.

Submissions by the 4th Respondent/Applicant

14. The submissions by the 4th Respondent were short and straight forward and can be summarized to be that the petition initially filed and paid for was never and has never been served to date while the one subsequently filed without payment of court fees was the one served .

15. Accordingly the 4th Respondent takes the position that a petition filed without payment of requisite court fees is not properly on record and ought to be stuck out. To support that position the 4th respondent placed heavy reliance on the letter in the hands of the Deputy Registrar, the custodian of the court file, that indeed the petition served was filed afresh and that the only mistake was that the petitioner failed to retrieve the initially filed petition. They pointed out that the petition dated at Kilifi bear handwritten words “Court Copy” which words are missing from the petition dated at Malindi.

16. On the assertion by the Deputy Registrar that the petitioner sought to be allowed and was in fact allowed to retrieve the bad petition for the fresh one, the 4th Respondent questions how that request was made.

17. Mr. Kinyanjui then added that there were two ways open to the petitioner if he found his petition dated at Kilifi to be deficient; he could have opted to withdraw it altogether and file a fresh petition or just amend it and properly identify and name the petition dated at Malindi as ‘an amended petition’. His view was that to ask to retrieve a court filed document was not allowed by law and could only be described as improper. To him a petition filed but not served does not present itself for an answer by the Respondent while one that is not paid court fees for but served is not petition at all. On that score alone the 4th Respondent urged that the petition be struck out.

18. In addition the 4th Respondent urged that the petition be struck out on the grounds that it seeks orders against the 2nd Respondent, who was the Chairman of the 1st Respondent and had nothing direct to do with the actual polling and declaration of result of senatorial elections for Kilifi County and could not have declared the 4th Respondent as elected. Further the 4th Respondent took the position that a reading of the entire petition reveals that no complaint is directed at the 4th Respondent but all the petitioner sought to do was to blame the 2nd Respondent

19. Finally, it was highlighted that the substantive prayer in the petition is that it be declared invalid, the declaration of the 3rd Respondent as the elected Senator for Kilifi. To the 4th Respondent such, a declaration would be superfluous and of no effect as the 3rd Respondent was never declared the elected senator but was merely the County Returning Officer.

20. On the decided cases, Mr. Kinyanjui referred the court to the decision in Amina Husaan Ahmed –vs- the Returning Officer Mandera County and 2 Others (2013) eKLR for the proposition that parties have a duty to pay keen attention to the procedural requirements in lodging and presenting election petitions.

21. The decision in Evan V. 2 Nyakeriga –vs- IEBC and 2 Others was also cited for the proposition that a petition filed in time but not served has no legal force for the court to deal with and that whether or not to serve a petition is not a matter of choice for the petitioner but a legal obligation to be complied with.

22. Lastly, the decision by the Court of Appeal in John M. N Mututho -vs. Jayne W Kihara & 2 Others (2008) eKLR was cited for but having read that decision, it presents to me no assistance at all on matters at hand. The copy of the decision availed to court concerned a determination on stay pending appeal. Maybe the counsel intended to rely on the decision concerning the substantive appeal between the same parties and reported in (2008) KLR 10. It is for the proposition that an election petition that fails to give results serves no purpose because any evidence led on it may not relate the irregularities to the results.

23. Mr. Lumatete Muchai for the 1st – 3rd Respondent supported the application, associated himself fully with submissions by Mr. Kinyanjui and opted to add nothing on top

Submissions by the Petitioner/Respondent

24. Mr. Aboubakar opposed the application on behalf of the petitioner and relied on the Replying Affidavit as well as the list of authorities dated 10/10/2017.

25. The petitioner takes the position that there are not in the file two but only one petition dated at Malindi on 5/10/17. That position is grounded on the explanation at paragraphs 7 and 9(c) of the Replying Affidavit. The explanation is not very different from the account given by the Deputy Registrar save for the time of that night of 5/10/17. The advocate submitted and commented that after filing the petition dated at Kilifi, it was detected that it had deficiencies hence on the consultation with the Deputy Registrar it was decided that it be substituted with the one dated at Malindi. To Mr. Aboubakar, what is not outlawed expressly by law is by implication permissible. To him it was not the onus of the petitioner to state under what law the petition was substituted but rather it was the duty of the 4th Respondent, as the person alleging the supplanting to be wrong, to demonstrate what law prohibited the substitution.

26. Mr. Aboubakar equally took the position that the Deputy Registrar being part of the election court, as defined, had the discretion to exercise in allowing the substitution and that having so exercised that discretion, the only question one needs to ask is what prejudice has been occasioned to and suffered by the 4th Respondent. He submitted no prejudice had resulted and then sought reliance upon the provisions of Article 159(2) (d), Section 80(1) d and Rule 7 of the Rules for the submission that the court is bound to go for substance rather than rely on technicalities.

27. Additionally, Mr. Aboubakar submitted that there was no attack on the merits of petition as being offensive to my written law. He rejected the position by the 4th Petitioner that they had the option to amend the petition rather than substitute and reiterated that the petitioner had fully complied with the dictates of Rule 7(a) of the Rules. To Mr. Aboubakar, the Deputy Registrar had not been demonstrated to have acted in bad faith or fraudulently in exercising her discretion hence no wrong had been committed to merit the petition being struck out.

28. In the alternative, Mr. Aboubakar argued that even if there were two petitions, the remedy is to be found at section 6 Civil Procedure Act by having the latter suit (petition) being stayed rather than being struck out.

29. On prayer 3 of the application, Mr. Aboubakar submitted that there is no provision in law to authorize court to strike out selective paragraphs of a petition and that the confusion was occasioned by a genuine mistake of joining the chairman of the 1st Respondent unnecessarily. The title aside, the advocate added, the body of the petition clearly described the Respondents properly hence the petition was self-curing and was so self-cured when a consent to withdraw the petition against the 2nd was allowed. He conceded that paragraph 5 of the petition made a complaint against the election of the 4th Respondent as the governor of Kilifi but took the position that the same was yet another honest mistake that had occasioned no prejudice to any of the Respondents and required no amendments.

30. On attack on the petition for failure to declare the results Mr. Aboubakar argued that the rule was only applicable where results were declared but in in this petition they took the position that no results were declared, hence nothing to plead in the petition.

31. On the authorities cited the counsel placed reliance on the decision in BASHIR HAJI ABDULAHI –VS- ADAN MOHAMED NOOR & Others (2013) eKLR where the decision in Amina Hussan Ahmed (Supra) was revisited and explained or just distinguished.

32. Reference was equally made to the decision by Lesiit J in Mercy Kirito Mutegi –vs- Beatrice Nkatha (2013) eKLR and that by Majanja J in Wavinya Ndeti –vs- IEBC & 3 Others both for the proposition that the need to declare results was taken care of by rule 21 of the then Rules and that the overriding objective of the court militated against striking out a petition on technicalities without regard to the demand for substantial justice of the case.

33. On these grounds the petitioner urged the court to dismiss the application and allow the dispute in the petition proceed to hearing on the merits.

Rejoinder by the Respondent

34. In response to the Petitioner’s submissions,Mr. Kinyanjui asked the court to allow Ms Jadi to offer the closing submission. Her response was succinct and short to the effect that there being an admission by both petitioner and the Deputy Registrar that there was a second fresh petition filed but no court fees paid, it was not in doubt that the petition was improperly before the court. She reiterated that as at the date the 4th Respondent filed its response there were two distinct petitions in the file and that the authorities were clear that failure to disclose the results availed the petition to be struck out.

35. On reliance on article 159(2) d Ms Jadi submitted that the question of payment of court fees was not a mere technicality but a substantial issue. She referred the court to Supreme Court petition No 5 of 2013, RAILA ODINGA –VS- IEBC and Others for the enunciation that election petitions are special litigation and noted that pursuant to section 79(a) of the Elections Act, the court is empowered to reject a petition upon perusal.

36. On the submissions that the advocate who prepared the papers made mistake, Mrs Jadi took the position that the choice of an advocate was always upon the petitioner and the petition pursuant to such choice must equally take all appurtenant consequences.

Issues, analysis and determinations.

37. Having perused the papers filed, heard the parties on their oral submissions and taken into account the law cited and out of own reading, I have come to the conclusion that the following issues isolate themselves for determination of the application:

(i) Whether the petition dated 5/9/2017 at Malindi having been filed as explained by the Deputy Registrar was validly filed and what its fate ought to be.

(ii) Whether the petition as filed declared the results in terms of Rule 8(1) c

(iii) Whether paragraphs 3, 4, 5, 20, 21, 33, 35(b) and 39 of the petition ought to be struck out.

(iv) Whether prayer (b) in the petition ought to be struck out.

(v) What orders should be made on costs.

38. I consider the question posed in the first issue to be far-reaching and all-encompassing and may as well have a bearing on the rest of the issues once determined. For that reason, I propose to deal with it first issue in the first instance, and only if I find the petition to have been duly and properly filed and therefore meriting consideration on the merits, would then be a need to consider to other issues.

Whether the petition dated 5/9/2017 at Malindi and filed as explained by the Deputy Registrar was validly filed.

39. Both sides to this petition and the Deputy Registrar agree that on the 6/9/2017 the petitioners through an advocate practicing as Gatundu and Company Advocates presented to the registry at about 11. 00 or 11. 30 p.m a petition dated 5/9/2017 dated at Kilifi and after having same filed, it was realised that the petition was deficient, in their view, hence it was decided, with consultation with the Deputy Registrar, that he files a fresh petition. In the words if the petitioner at paragraph 7 of the Replying Affidavit sworn on 31/9/2017, ‘Mr. Gatundu who was visibly drunk, inadvertently gave to the registry officials the draft copy of my petition for purposes of assessment to enable me pay the court fees. A commotion ensued between me and, other petitioners and Mr. Gatundu who then ran away. At this juncture, Alice with whom all the Jubilee party aspirants were working with delivered the correct petition after intervention by the Hon Deputy Registrar and I paid the mandatory and requisite court fees’.

40. From this averment by the petitioner on oath, there is no doubt that two petitions dated differently were indeed presented. What is not clear is whether both were paid for and at what time. That explanation is to be found in the letter by the Deputy Registrar to the 4th Respondent dated 18/9/2017. I consider this to be the crux of the matter for the determination on the propriety of the petition hence I would once again reproduce the portion of the letter I consider critical. The Deputy Registrar wrote:-

“………there was misunderstanding and commotion that night after filing it, another one was presented by counsel from that firm. They requested to file the fresh petition, which they did. Unfortunately due to time constraints, and the number of petitions being filed, they did not go with the court copy of the previous petition. This was mistakenly entered into our registers”

41. I do give to the petitioner the benefit of what he appreciated to have been involved in filing the petition. I will also give to the Registrar what she recalls as the happenings that night as the custodian of the records, a trained lawyer and a judicial officer bestowed with the duty and obligations not only to ensure due and diligent keeping of court records but also the integrity of such records. On the slight variation of what happened as told by both, I choose to rely on the word of the Deputy Registrar due to her legal standing, exhibited forthrightness and duty as aforesaid.

42. The court, by it Deputy Registrar, is unequivocal that the second petition was presented after the first one had been filed. To me filing the petition in terms of Rule 7(a) entailed the presentation of the petition to the deputy Registrar and payment of assessed court fees.

43. Now, in my understanding, once parties file documents, the copy they tender to court to form part of the court record cease to be owned by them but by the court. They are hence not at liberty to deal with such papers as they deem fit without recourse to court. Therefore, even in ordinary litigation the law provides how to deal with a deficiency in a pleading. It is by an amendment either with the leave of the court or without the leave before pleadings close. For election petitions the remedy is once again by an amendment within the 28 days allowed for filing petition and only with the leave of the court. This to this court is the only way to guarantee the integrity of the court records so that incidences like this one here where the 4th Respondent was kept wondering which petition to respond to can be avoided.

44. But there are other and further concerns about accounts of the happenings as given by the petitioner and the Deputy Registrar. If indeed the petitions, 9 of them , were all presented at once, noting from the register I have perused, this was the 3rd of petitions presented by the firm of Gatundu & Company Advocates that night, then at what time was the mistake discovered, how long did it take the fresh petition to be put together bound and rushed to court? At what time was the petition presented? Was it still the 6th day of September 2017 or had the day changed to 7th September 2017?

45. Additionally, if Mr. Gatundu was thus drunk and differed with his client to the extent that he ran away, how did the other advocate alleged to be from the same firm get instructions to avail the correct version of the petition? Supposing the need for the fresh petition was occasioned by the defects noted after the time of filing why was it necessary to backdate the petition to read 5/9/2017?

46. Taking into recount the fact that the address of service for the advocate given in the petition and to the Registrar is Utalii House, Nairobi, and that may explain the last minute filing, how possible was it that within minutes of the deficiencies being discovered, that fresh petition was readily available. More importantly five of the nine petitions, as par the register of petitions, were filed at the same time and minute, at 11. 55 p.m., on 6/9/2017. If one understands how the court registry works this may as well be an area for further explanation to be offered by the staff working at the registry that night. Was there anything to hide, noting that the earlier petitions do not reveal the hour and minute of filing?

47. These are questions that raise more questions than answers and I have been unable to get answers myself. However, the law must not be static but must answer to the challenges of the society as it develops its systems. For this reason it is the view of this court that, moving forward, the Rules Committee may need to relook the applicable rules and introduce a way of verifying the exact time a petition is filed. Such would go a long way in bolstering and affording the force of law the initiative by the Judiciary Committee on Election of scanning and transmission of paper as and when filed.

48. This far, It is enough to say that for his own reasons, as advised by counsel, the petitioner chose to supplant the petition dated 5/9/2017 at Malindi for that dated the same day at Kilifi without a court order but forgot to take away the undesired/deficient copy and thereby raising the 4th respondent antennae. The first petition, if I believe the Deputy Registrar, as I have done, was paid for but I have not seen my evidence of court fees paid for the fresh petition. I hold that the second petition was not validly filed in accordance with the Rule 7(a) for lack of payment of court fees. It was not properly or validly filed but otherwise unprocedurally found itself in the court file. That it was validly served does not cure the fact that it was improperly placed in the court file.

49. It has been submitted by Mr. Aboubakar that the Deputy Registrar is part of the election court and had the discretion to intervne as is admitted by the petitioner and the office of Deputy Registrar. It is not deniable that the Deputy Registrar acts on behalf of the court. However the powers of the Deputy Registrar are exercise on behalf of the court and must be limited to those expressly allowed and permitted by the rules or those that are purely ministerial. For purposes of an election petition the judicial duties and powers of the Deputy Registrar must be confined to those allowed under the Act and the Rules for example; the duty to handle the deposit for security for costs under 13(3), the duty to keep the register of petitions under Rule14 and the duty to tax costs under Rule 31(i). I do not read the Act and the Rules to permit a registrar to exercise the powers of the court like to enlarge time for parties to undertake any actions or indeed to allow it sanitize its pleadings or papers by substituting what the considers untidy or deficient with tidy or complete one. The day such will be allowed, even if one would be to consider it to be in the interests of substantial justice, is the day, it would be difficult for the court and even the litigating public to be sure of what are the authentic court papers. In fact the court shall have lost the standing to guarantee the parties of the veracity and integrity of papers filed by them. On that duty, it is the court through its registry staff who have the duty and obligations to ensure that the integrity of its records is upheld at all times. For this I share the views of my colleagues Fredrick Ochieng and Achode JJ, in NRB MSC. Criminal Application No 246 of 2010, DANSON MAINA MUCHOKE –VS Republic when it Judges said:-

“……..the concerned court registry bears the responsibility as it has the primary duty of preserving the security and integrity of court records.”

50. The difficulty a court faces when the court record cannot be verified or its integrity vouched for have not been limited to this and the lower courts only but presented itself even to the Court Of Appeal. A reading of some of the decisions by superior courts demonstrate the abhorrence with which the court view the incidences where court records are made to disappear or just falsified. In the case of FRANCIS NDUNGU WAINAINA –VS- REPUBLIC, the court of appeal while praying for the end of the area of falsification and loss of court documents said:-

“As stated earlier, the appeal cannot be heard on the basis of records which are admittedly adulterated. There is no way of knowing the contents or retrieving the authentic originals which are confirmed to have been falsified. No direct or otherwise evidence is available to connect the appellant with the falsification of the records although, as observed by Mr, Monda, he would be the beneficiary of such situation. The irresistible inference is nevertheless that the court registries which are charged with the duty of safe custody of court documents, and those who work in those registries, played a big role in the falsification.”

…….fortunately, the era of interference with the court records will soon came to an end after completion of the ongoing process of digitization of the court records.”

51. Although the cited decisions were based on criminal proceedings and the disappearance or falsification of court proceedings rather than pleadings, I take the view that all records of the court ought to be verifiable whatever the concerned document is called. That, as said before, will be the only way to protect the authenticity, standing and integrity of the court documents, its proceedings, records and processes.

52. In this case, I do not entertain an iota of doubt that the election court as defined does not include the Registrar and that the registrar clearly had no power to allow the parties exchange the documents in a manner that would be tantamount to an amendment. That the parties initiated the process and misled a young judicial officer cannot be an excuse for them to get reward for their undoing. The petitioner having confirmed that he had a scuffle with his advocate and facilitated the supplanting of the impugned document cannot be said to be removed from the irregularity and mischief the court has been called upon to correct. He must be regarded for what he set to do and managed to achieve-interfere with court records. Owing to the circumstances revealed here and taking judicial notice on how all judicial officers and staff have become vulnerable to attacks by all cadre of politicians, I deem the happenings here to have been a case of clear intimidation on the judicial officer and staff by the company the petitioner kept that night. Unlike the Court Of Appeal in the case of FRANCIS NDUNGU WAINAINA –VS- REPUBLIC (supra) I would, reminding the judicial officer and staff that what was done was not expected of them, exonerate the court staff and Registrar from wrongdoing, but admonish and castigate the petitioner for his actions that night.

53. The consequence is that the petition dated 5/9/2017 at Malindi is improperly before the court for the manner it was filed in the court file and the failure to pay court fees upon its filing. It is thus struck out.

54. The 4th Respondent studiously maintained that when they visited the registry and perused the court file there were two petitions in the file. It has not been asserted that the petition dated at Kilifi was ever served within the timelines and at all. If it has not been served to date, some more than 45 days later, it must be inferred that the petitioner did not intend that the Respondent answer to it and it is agreed that it has not been answered to. In the words of Mr. Aboubakar in his oral submissions before court ‘by mistake it was the petition intended to be retrieved from the court file that was entered in the register”.

55. That the petitioner elected to abandon the petition dated at Kilifi, sought to retrieve it, and thereafter failed to serve it, is clear to this court that the petition to them and in law does not exist and cannot survive the other filed after it and intended to substitute it.

56. In KUMBATHA NAOMI ADI –VS- THE COUNTY RETURNING OFFICER, KILIFI & 3 OTHERS, (2013) eKLR, C. Muchemi J said and I fully agree:-

“The petition was filed within the stipulated period but it was not served. Any pleadings filed and not served on the opposite party has not legal force. It cannot be dealt with by the court and no lawful orders can be drawn from it. Service of pleadings accords the opposite party the chance to be heard. It is my considered opinion that his petition is a petition that never was.”

57. As the petitioner has unequivocally shown no intent to prosecute the originally filed petition and there being no attempt even at seeking to extend time, I must state here and say that with the striking out of the petition that was served, nothing remains on record for the court to consider at the hearing. In any event the Registrar has put the last nail on that petition’s coffin by the letter of 18/9/2017 where it is categorically stated that there was only one petition in the court file-the one which was served.

58. Having struck out the petition the other remaining issues I drew have now become moot if not just academic. It would be superfluous to consider striking out portions of a document the court has already strike out. I refrain myself from addressing the three outstanding issues, I had isolated.

59. On costs, the law provides that costs shall follow the event. The event that emerges from my decision in this matter is that the petitioner has failed in his challenge of the 4th Respondents election as presided over and declared by the 1st and 3rd Respondents. The converse is that the Respondents have succeeded against the petitioner by successfully defending that election.

60. Section 84 of the Act mandates that the costs shall follow the cause. In addition Rule 30 of the Rules gives the court the power to specify the total amount of costs payable, the maximum amount of costs payable and the persons to pay and be paid.

61. The matter having ended in the manner it has and while I express disdain at the conduct of the petitioner in the manner the filing was handle d and further noting that the petition has ended prior to any witness being called and by interlocutory application, with such regard to the fact that election petition demand of the parties and their counsel extra application, industry and instrumentality, if the rate at which we keep modernizing our electoral law is anything to go by, I award to the respondents costs of an all-inclusive sum of Kshs 2,500,000/=. The 1st and 3rd Respondents shall get Kshs 1,250,000/= while the 4th Respondent will also get the like sum of Kshs 1,250,000/=. I consider the energy industry and vigor employed by the 4th respondent in pursuing and canvassing the issues which have proved terminal to the petition to be comparable and equal to that engaged by the 1st-3rd respondents in compiling otherwise extensive and voluminous response.

62. It is ordered.

Dated and delivered at Malindi this 2nd day of November, 2017

PATRICK .J. O. OTIENO

JUDGE