[2017] KEHC 2424 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

ELECTION PETITION NO. 3 OF 2017

HON. JAMES KIRIMI KARUBIU …........................ PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

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

SAMUEL LEPATI SEKI …................................ 2ND RESPONDENT

RULING

1. This ruling arises out of an application filed by the respondents’ at the Kerugoya High Court Election Petition 3 of 2017 dated 16th October 2017.

2. The application was served upon the petitioner’s advocates as directed by the court and they were granted three days within which to respond but failed to do so. The application was therefore unopposed.

3. The application was filed under Article 87 (1) of the Constitution of Kenya 2010, Sections 75, 76, 78 and 80 of the Elections Act, 2011 and Rules 3, 4 and 13 of the Elections (Parliamentary and County Elections) Petition Rules 2017 and seeks the following orders;

i) That the Petition dated 6th September, 2017 and filed in court on 6th September, 2017 be struck out and/or be dismissed with costs for lack of clarity and reasonable precision in its mode of pleading and presentation to court.

ii) That the Petition dated 6th September, 2017 and filed in court on 6th September, 2017 be struck out and/or dismissed with costs for want of compliance with mandatory statutory requirements on presentation of electoral disputes.

iii) That costs of this application be borne by the Petitioner.

4. The application was supported by the Affidavit of the 1st respondent and the Legal Officer of the 1st respondent both sworn on 16th October 2017, and the grounds on face of the application are as follows;

a) That the Petition though titled by the Petitioner as “Constitutional Petition” seeks prerogative orders of Judicial Review, Constitutional remedies, Contempt of Court Orders and remedies which are only available in an Election Petition.

b) That a close study of the substance of the “Constitutional Petition” as drafted and presented discloses that the same is actually an Election Petition disguised as a Constitutional Petition.

c) That the petition as presented amounts to gross abuse of the court process.

d) That his lordship the Chief Justice of Kenya, Hon. David K. Maraga (MR), caused the Petition to be published in the Kenya Gazette of 15th September, 2017 (as were other election petitions) as an Election Petition.

e) That the petitioner has not regularized his pleadings to conform to the mandatory requirements in Election Act, 2011 and also has not paid into court security for costs.

5. The applicants’ Supporting Affidavits reiterated the grounds and deposed the basis for a striking out and/or dismissing the petition with costs as follows;

a) That the petitioner is not clear as to what remedies he is seeking from the court and has fused and muddled up the remedies he is seeking to include prerogative orders of judicial review, punishment for contempt of court orders, infringement of constitutional rights as well as remedies which can only be granted in an election petition.

b) That the petitioner’s principal grievance is the Senatorial elections for Kirinyaga County held on 8th August, 2017 were not conducted in accordance with the Constitution and laws governing the conduct of elections in Kenya as regards nominations, voting, transmission, tallying and declaration of results.

c) That Section 78 of the elections Act mandatorily requires a Petitioner to pay security for costs.

d) That despite publication of the petition in the Kenya Gazette Vol. CXIX – No. 137, the petitioner did not:-

i) Amend his petition to cite the winner of Kirinyaga County Senate seat for 8th August, 2017 elections as a Respondent.

ii) Deposit into court the required security for costs within the stipulated period or at all and neither did he seek enlargement of time to do so.

iii) Amend the petition to comply with law in all material aspects of an election petition.

e) That the Petitioner has sought to circumvent the due process and rigors of the Elections Act, 2011 and the Regulations made thereunder by presenting an Election Petition disguised as a Constitutional petition.

6. Counsel for the Applicants made their oral submission on 1st November 2017.

APPLICANTS’ SUBMISSIONS

7. Learned counsel, Mr. Mwongela, submitted on behalf of the Applicant. He begun by stating that he relied on the grounds on the face of the petition. That the petition is headed as a constitutional petition but the prayers sought are prerogative orders of judicial review, constitutional remedies, contempt of court and remedies in election petition hence the respondent is prejudiced. A scrutiny of the petition shows it is an election petition disguised as a Constitutional petition in which the petitioner seeks to circumvent requirements of law as to resolution of electoral disputes particularly Article 87 of the Constitution 2010, Section 75, 76-78 and 80 of the Election Act and Rules 3-4 of the Election Petition Rules 2017.

8. That the Chief Justice published a gazette notice where the matter was published as an election petition. The matter has come up before court severally but the petitioner has not taken any steps to ensure that his pleadings are compliant with the law.

9. It was his submission that looking at the body of the petition and affidavit in support thereof together with the notice of motion dated 6th September 2017, the application is for leave to institute Judicial Review proceedings. Paragraph 4, 5, 6 and 17 of the Petition, the petitioner is pursuing contempt of court with respect to orders issued by Nyeri High court in Judicial Review No. 7 of 2017. The petitioner is alleging that the respondents are contempt of that order and ought to be punished.

10. That under paragraph 4 – 22 of the petition, the petitioner is pursuing remedies in violation of constitutional rights. Reading the entire petition, the main complaint and reliefs sought, the petitioner’s principle grievance is the outcome of the senatorial elections held on 8th August 2017. He is complaining about the nominations, voting, transmission, tallying and declaration of results. The relief sought is the quashing of the process and if the petitioner was to succeed, the outcome would be reversal of the senatorial elections in Kirinyaga County.

11. That irrespective of the title, what is before court is an election petition disguised as a constitutional petition to evade the strict requirements in the Election Act and rules made thereunder in particular the mode of presentation.

12. Mr. Mwongela further submitted the requirements of hearing of election petition as follows;

i) Statutory requirement: to deposit security within ten (10) days from the date of presentation of the petition.

ii) To file the petition within twenty eight (28) days of the results and serve the petition within fifteen (15) days

iii) To comply with the Constitution and the Election Act on the mode of service, either by personal or through advertisement with a newspaper with wide circulation.

13. That the Election Act and rules provides who is supposed to be a respondent which must include the winner of the election being challenged, the returning officer and the electoral body. That the petition does not name the winner of the election only the 1st respondent as IEBC and the 2nd respondent as the returning officer therefore the petition is fatally defective.

14. Learned Counsel for the Applicant in closing his submission submitted that what is before court is an electoral grievance which ought to be dismissed if it does not conform to the Election Act and Rules. He prayed that the petition be struck out or dismissed.

ISSUES FOR DETERMINATION

15. These are the issues this court has framed for determination;

i) Whether the Petition is a Constitutional Petition or an Election Petition;

ii) Whether the petitioner has satisfied the mandatory requirements of the law;

a) Parties to the Petition.

b) Deposit of security

ANALYSIS

16. This matter had been listed for hearing on the 25th October, 2017; the date had been taken in court with the consent of both counsel for the petitioner and the respondents; the matter did not proceed for hearing on that date as the same was gazetted as a Public Holiday;

17. The day prior to the Public Holiday parties were directed by the Deputy Registrar to appear before this court on the 27th October, 2017 for mention for purposes of fixing another hearing date; on that date only counsel for the respondent was in attendance and the date for hearing was fixed for the 1st November, 2017 and counsel was directed to serve the petitioners advocates with a Hearing Notice;

18. On the 1st November, 2017 despite having been served neither the petitioner nor his counsel were in attendance; it is also noted that they had also not put in any response to the application for dismissal of the Petition; the application as it stands is unchallenged; the matter therefore proceeded for hearing in the absence of both the petitioner and his counsel.

Whether the Petition is a Constitutional Petition or an Election Petition;

19. The petitioner’s principal grievance is that the Senatorial elections for Kirinyaga County held on 8th August, 2017 was not conducted in accordance with the Constitution and laws governing the conduct of elections in Kenya with regard to the transmission, tallying of the votes and he therefore seeks a declaration nullifying the Senatorial election and the results announced and that a fresh election be conducted.

20. In the Petition under the heading “RELIEF SOUGHT” at the paragraphs listed hereunder disclose the following reliefs;

“5. A declaration that the respondents disfranchised discriminated and delineated the petitioners Kirinyaga Senatorial voters.

6. For the purposes of expedient and fair administration of justice consequently it is just expedient and equitable that this honourable court excise(sic) the powers donated to it by the Constitution of Kenya 2010 nullifies the Kirinyaga senatorial elections and the results announced and makes a declaration that the respondent holds fresh elections and gives the petitioner equal rights and privileges by including him in The Kenya Integrated Electoral Management System and other processes and systems for counting tallying and transmitting results.

7….

8….

9. There be a scrutiny and recount of votes recorded as having been cast in the aforesaid Senatorial Election for Kirinyaga County in the Election held on 8th August 2017 for purposes of determining the votes cast in favour of the Petitioner.

10…..

11. Being in contempt of a court order, A mandatory nullification of the Senatorial contest and pronunciation for a new elections date in which your petitioner is given equal rights and opportunities like all other contestants.”

21. From perusal of the grievances and the remedies sought by the petitioner in his Petition this court is satisfied that the Petition though titled by the Petitioner as “Constitutional Petition” seeks remedies which are only available in an Election Petition; .

22. The “Constitutional Petition” as drafted and presented this court has noted that the petitioner has fused and muddled up the remedies he is seeking and has included prerogative orders of judicial review, punishment for contempt of court orders, infringement of constitutional rights and has also included remedies which can only be granted in an election petition.

23. Upon careful perusal of the Petition and the reliefs sought one is left with no doubt that it is actually an Election Petition disguised as a Constitutional Petition; and this court finds that the Petition was properly gazetted by the Chief Justice Hon. Justice Mararga as an Election Petition.

24. This court is satisfied that the Petition as filed lacks clarity of content particularly in the multiplicity of reliefs sought and finds that the Petition does not conform to the rules relating to content of an election petition.

Whether the petitioner has satisfied the mandatory requirements of the law;

Parties to the Petition;

25. The Petition was filed on the 6th September, 2017 and was published in the Kenya Gazette Vol. CXIX – No. 137;

26. This court reiterates that the relief sought is the quashing of the process; it is noted that the petition does not contain the name of the winner of the Kirinyaga Senatorial Seat as a respondent; it only sets out the 1st respondent as IEBC and the 2nd respondent as the returning officer;

27. The Election Act and Rules provides who is supposed to be enjoined as respondents which must include the winner of the election being challenged, the returning officer and the electoral body.

28. The purpose of pleadings is to give a fair notice of the case to enable the adversary to respond and defend his position; and if the petitioner was to succeed, the outcome would be the reversal of the senatorial elections in Kirinyaga County and this would be prejudicial to the person who won the senatorial seat;

29. It was therefore incumbent upon the petitioner to include the winner of the Kirinyaga Senatorial seat as a party to the Petition; to date the Petitioner has not taken any steps to remedy the omission as no request for amendment has been made to enjoin the said winner as a respondent so as to enable him defend his interest;

30. The petitioner has failed to take steps to ensure that the Petition filed is in compliance with the law and such an omission renders the Petition as being fatally defective.

Depositing of security

31. Section 78(1) of the Elections Act mandatorily requires a Petitioner to pay security for costs not later than 10 days after the presentation of an election petition; Section 78(2) stipulates the amount for a Senatorial seat as the sum of Kshs.500,000/-.

32. Under the provisions of Section 78(3) where a petitioner defaults in depositing the security for costs no further proceedings shall be heard on the Petition and the respondent may apply to the election court for the dismissal of the Petition;

33. This court is guided by the decision inRotich Samuel Kimutai vs Ezekiel Lenyongopeta and 2 others [2005] eKLR where it was held that non–compliance with the Act renders the Petition incompetent;

34. To date the petitioner has put forward no excuse for non-compliance with this requirement nor has he taken any steps to enlarge the time for payment; the respondents have since moved to court and seek orders for the dismissal of the Petition for want of compliance;

35. In the light of the above this court finds that the order sought for dismissal of the Petition for non-compliance with prescribed mandatory requirements is merited.

FINDINGS AND DETERMINATION

36. For the forgoing reasons this court makes the following findings and determination;

(i) The Petition is found not to be in conformity with the rules relating to the content of an election petition.

(ii) The Petition is found to be incompetent in all aspects and is hereby dismissed for want of compliance with the law;

(iii) The petitioner shall pay the 1st and 2nd respondents costs capped at Kshs. 300,000/-

(iv) The costs to be taxed and certified by the Deputy Registrar.

Orders accordingly.

Dated, Signed and Delivered at Kerugoya this 3rd day of November, 2017.

HON.A. MSHILA

JUDGE