[2017] KEHC 1490 (KLR)

REPUBLIC OF KENYA

IN THEHIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION NO. 23 OF 2017

JAPTHET MUROKO....................................................................................................................1ST PETITIONER

ZACHEUS OKOTH OLIECH .......................................................................................................2ND PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC)............................1ST RESPONDENT

JOSEPH MELE EROO,

RETURNING OFFICER NAIROBI COUNTY................................................................................2ND RESPONDENT

KIOKO MIKE SONKO MBUVI GIDEON....................................................................................3RD RESPONDENT

RULING

Background

1. The election that is the subject of the petition before me concerns the election of the 3rd Respondent as the Governor for Nairobi City County as declared by the 1st Respondent in accordance with the law, following the general elections that were held on 8th August 2017. Consequently, this Petition was filed on 8th September 2017, challenging the declaration of the 3rd Respondent as the validly elected Governor for Nairobi City County by the 1st Respondent.

2. The respondents herein challenged this petition. The 3rd respondent by a Notice of Motion dated 20th November 2017 and filed on 21st November 20017, under a Certificate of Urgency seeks orders to strike out the petition for being fatally defective citing various grounds for non-compliance with the mandatory provisions of the law. The application is supported by the Affidavit of the 3rd Respondent sworn on 20th November 2017. By a Notice of Preliminary Objection dated and filed on 22nd November 2017, the 1st and 2nd Respondents seek that the petition be struck out on the sole ground that the petition is incompetent or failure to join the Deputy Governor, Mr. Polycarp Igathe as a respondent to these proceedings within the mandatory 28 days of declaration of results. In response to the application, the petitioners filed Grounds of Opposition on 29th November 2017 accompanied by a bundle of authorities. The 3rd respondent filed a Supplementary Affidavit to the application to strike out the petition in response to the petitioner’s grounds of objection.

3. On 23rd November 2017, this court directed that owing to the nature of the application and the objection, they be dispensed with first before the court can proceed with other pending applications and consequent hearing of the petition. Parties filed their respective submissions save for the petitioners who made oral submissions when the applications came up for hearing on 4th December 2017. At the hearing of the application and preliminary objection, Mr. Kinyanjui and Mr. Cecil Miller appeared for the 3rd respondent while Mr. Nani Mungai appeared for the 1st and 2nd respondents. Mr. Ochieng Oginga & Ms. Velma Maumo appeared on behalf of the petitioners, holding brief Mr. Aluoch, counsel on record for the petitioners

Respondents/Applicant’s case

4. The 1st and 2nd respondents raise only one question of law: failure by the petitioners to join the Deputy Governor, Mr. Polycarp Igathe to these proceedings. Their position is that failure to join the Deputy Governor as a respondent is fatal to the petition as it goes against the right to fair hearing under Article 50 of the Constitution.

5. The 3rd respondent challenges the competency of the petition on a number of grounds. He holds the view that the petition should be struck out for failing to comply with the mandatory provisions of the law. His case is premised in the grounds that the petition has not complied with Rule8(1) (a), (c), (d) and (f) of the Elections Act (Parliamentary and County Elections) Petitions Rules, 2017, (hereinafter ‘the Rules) for failing to indicate the results being challenged, the manner in which they were declared and the date the results were declared. The petition is also faulted for failing to include the 2nd petitioner, having been drawn under one petitioner only, with no details of the name and address of the 2nd petitioner or his advocate not in the petition.

6. Further, the 3rd respondent faults the petition for containing a defective prayer that is incapable of being granted as it seeks nullification of entire results contained in the Gazette Notice No. 118 yet the court’s jurisdiction is limited to election of the governor Nairobi County and further fails to specify the particular gazette notice in respect of the impugned election. Further, that the cited defects have also been replicated by the petitioners’ supporting affidavits further demonstrating noncompliance with the law. Furthermore, the petitioners have not shown how the cited constitutional provisions were violated in the impugned election.

7. In his Supplementary Affidavit, the 3rd respondent faults the petitioners approach by filing grounds of opposition, thereby failing to respond by evidence to the questions raised by the 3rd respondent. Thus, the issues raised in the application should be deemed as admitted. Additionally, the 3rd respondent deposes that the petition is a complete pleading contrary to the petitioners’ argument that the Supporting Affidavits constitute part of the petition. The petitioners failed to contest the 3rd respondent’s averments and continued to rely on erroneous facts. The 3rd respondent maintains that he stands to suffer prejudice since the petition does not disclose any determinable issue.

Petitioners’ case

8. The petitioners opposed the Application as well as the Preliminary Objection through their Grounds of Opposition and supporting authorities. In response to the allegation of the failure by the petition to comply with the law, the petitioners maintain that the petition complies with the law and mandatory provisions of Rule 8 of the Rules in that it sets out: the date when the gubernatorial elections were held at paragraph 3; the date when the results were declared and the 3rd respondent announced as the winner at paragraph 8 while paragraphs 74 and 75 indicate the results. They add that factual grounds on which the petition is based are set out under at paragraphs 36 to 76 while paragraphs 9 to 35 set out the legal foundations of the petition. The petitioners also maintain that the name of the petitioners and their advocates address have been provided as well. The Affidavit in support of the petition has annexed the Gazette Notice No. 118 of 18th August 2017 which contains results garnered by the 3rd respondent while the declaration of results and announcement of the 3rd respondent were done on 12th August 2017 as indicated in the petition. The petitioners add that both petitioners filed affidavits in support of the petition and the 2nd petitioner’s affidavit contains his description and address. The petitioners advance that their view that, the Affidavits in support of the petition and the annexed documents comprise the petition and are thus part of the pleadings.

9. Responding to the question of failure to join the Deputy Governor, the petitioners state in their Grounds that the Deputy Governor was not an elective candidate in the gubernatorial elections. This position was premised on the fact that a Deputy Governor was not nominated by any political party, and further that the definition of a candidate under Section 2 of the Elections Act does not include a Deputy Governor. Furthermore, the 1st & 2nd respondents did not conduct elections for a Deputy Governor neither does Section 39(1A) of the Elections Act provide for election and declaration of results for the Deputy Governor. The petitioners urge that if there are any defects in the petition, such defects are not fatal to render the petition incurably defective and further that there has been no demonstration of any prejudice that the 3rd respondent has suffered as a result of any defect in the petition. They have argued the 3rd respondent was advancing arguments that ought to be made at the hearing of the petition and the application is thus an abuse of the court process.

Analysis and Determination

10. Having considered each of the party’s case, as well as their corresponding submissions and authorities, I find two main issues that call for determination:

a) whether the petition should be struck out for failure to comply with the law in both form and content

b) whether the petition is defective on account of failure by the petitioners to join the Deputy Governor.

Noncompliance with Rules in form and content

11. The 3rd respondent cited various faults in the petition as being substantive as to the render the petition fatally defective. He alleged that the petition cited non-existent results which was not consistent with the official gazette results; and it included wrong date of declaration of results; and incompetent prayer.

12. Rule 8sets out the content of a petition as follows:

(1) An election petition shall state –

(a) the name and address of the petitioner;

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

(c) the results of the election, if any, and however declared;

(d) the date of the declaration of the results of the election;

(e) the grounds on which the petition is presented; and

(f) the name and address of the advocate, if any, for the petitioner which shall be the address for service.

13. On the first question it was submitted that this court has jurisdiction to strike out an incompetent petition as held in the case of Amina Hassan Ahmed v Returning officer Mandera & 2 Others 2013 eKLR on account of failure to state results and election date, failure to state the manner of declaration and date of declaration and as earlier set out in Mwanza v Kiti & Another (2008) 1KLR (EP) 326. Reliance was placed on the decision of the court in Electoral Commission of Kenya v Ongwae (2008) 2KLR 652 to support the position that failure to state the manner of declaration of results rendered the petition defective. Mr. Kinyanjui pointed out that the petitioners had pleaded incorrect results. Thus, the question of results being an election is a function of the law ought to be adhered as held in the case of John Michael Njenga Mututho vv Jane Njeri Kihara & 2 Others(2008).Further he submitted that the date of the declared result was a mandatory requirement of Rule 8(1)(d). He cited the case of Evans Nyambaso Ledekiah & Another v IEBC & 2 Others (2013) eKLR to support the positon that where material particulars are not included, the petition ought to be struck out.

14. The petitioners maintain that there is compliance with Rule 8(1)(b), (c) and (d) since the petition contains the date the disputed elections were held, the results and how they were declared and the date of the declaration of the results. On the question of the date when the elections were conducted, the petition indicates that the elections in question were held on 8th August 2017 under paragraphs 3, 6, 7, 36, 39, 65 as well as in the Supporting the Affidavit of the 1st petitioner. This issue therefore fails.

15. Regarding the declaration of results, counsel for the 3rd respondent submitted that declaration of result must be made in the petition itself. The petition had therefore, failed by indicating the date of declaration of results as 12th August 2017, without citation of any supporting reference, yet no such declaration was made. Reliance was placed on the Gazette Notice of declaration of results. It is not in dispute that the date of declaration of results of the winner of the gubernatorial elections is indicated in the petition under paragraphs 6, 8 as 12th August 2017. In the bundle of the 1st petitioner’s exhibits, is a copy of Gazette Notice No. 7845 – Declaration of Persons Elected as County Governors and Deputy County Governors dated 16th August 2017 which was published in Kenya Gazette Vol. CXIX No. 118 of 18th August 2017.

16. The question as to whether the results were declared on the date alleged by the petitioners is a matter of evidence. This is because the law on declaration of results is settled. The Supreme Court settled the position to be that declaration of results is done by the returning officers in the certificate of election for the respective position. (See Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others, Supreme Court Petition No. 10 of 2013[2014] eKLR. Therefore, the burden is upon the petitioners to prove what they state in the petition, thus, the question of declaration should be left to determination by evidence.

17. A question was also raised at the hearing of the petition in court that the petition was supported by the unsigned affidavit of the 1st petitioner. This was disputed by counsel for the petitioners who maintained that a signed Affidavit was filed and served upon the parties. An examination of the court record shows that there are two Supporting Affidavits of the 1st Petitioner, both stamped as filed on 8th September 2017. The difference between the two is that one Affidavit is unsigned and contains 48 paragraphs while the second one is signed by the petitioner and has 47 paragraphs. The two documents bear the same content save that the unsigned affidavit contains a paragraph indicating that the 1st petitioner has the authority of the 2nd petitioner to swear the affidavit. Counsel for the petitioners maintained that the correct Affidavit was signed, and served in court and to parties. I shall therefore place reliance on this fact and find that there is a proper affidavit of the 1st petitioner in support of the petition.

18. The 3rd respondent also questioned the petition for failing to show how the cited provisions of the Constitution have been violated, thus failing the principle set out in the case of Anarita KarimiNjeru v Republic (No. 1) [1979] 1 KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012 [2013]eKLR. This question is best left for determination upon consideration of the evidence that the petitioners have in support of any averments made in the petition. The challenge to one of the prayers in the petition as being incapable of being granted cannot be determined without appreciation of the issues and the evidence. Furthermore, it is upon the court to determine the appropriate orders to make upon consideration of the evidence and the law in a particular case.

19. The 3rd respondent urged the court to strike out the petition since the 2nd petitioner is unknown before this court, relying on the case of Ochieng v Machani & Another (2008) 1KLR (EP) 572. The 3rd respondent submitted that the 2nd petitioner was unknown to these proceedings, since his name and address and his advocates’ particulars were not provided for, contrary to Rule 8(1)(a) and (f).Having looked at the pleadings filed in court by the petitioners, it is observable that as correctly observed by the 3rd respondents, the 2nd petitioner’s details are not consistently appearing in all the pleadings.

20. Throughout the content of the petition, several references are made to one petitioner. The 2nd petitioner appears in both in the citation of the petition as well as in the introductory paragraphs on description of parties in the body of the petition at paragraph 2. However, admittedly, the introductory paragraph to the body of the petition does not describe the 2nd petitioner or his address for service. Mr. Kinyanjui made reference to a letter dated 7th September 2017 by A.T. Oluoch & Company Advocates to the chairperson, IEBC, which refers to the intended petitioners Mr. Japhet Muriira Muroko and Mr. Bernard Adhiambo Adhiambo. This letter has not been admitted as an exhibit and is furthermore, dated before the petition was filed, and cannot therefore offer any conclusive proof as to status of the petitioners.

21. This to an extent, violates Rule 8(1)(e) which however, in my view, is not consequential to the substance of the petition. Of importance, is that the 2nd petitioner is an identifiable party in the title citation, the description of the parties. Furthermore, the 2nd petitioner has sworn an Affidavit, dated and signed on 8th September 2017 authorizing the 1st petitioner to swear the supporting affidavit on his behalf, in compliance with Rule 12(1)(b)which requires that a petition be supported by an affidavit which is sworn personally by the petitioner or by at least one of the petitioners if there is more than one petitioner. However, it must not escape mention that the omissions in regard to the 2nd petitioner manifest a lack of keenness by advocates in the drafting of the pleadings that seemed to have been hurriedly put together.

22. I share similar sentiments in respect of the concern raised by counsel for the 3rd respondent regarding exhibits to the supporting affidavit of the 1st petitioner. It is true that the 1st petitioner makes reference to exhibits marked as ‘JM’ in his supporting affidavit. However, the referenced exhibits are not immediately attached to his Affidavit, which in the court record, is followed by the Affidavits of Dr. Noah Akala and Koitamet Ole Kina and the 2nd petitioner. The documents marked as ‘JM’ only follow thereafter. This in my view, does not dent the substance or competency of the deposition, but markedly point to the untidiness in the organisation of the pleadings. Above all however, Rule 5 gives the court the discretion to determine the question of effect of on compliance with the Rules in accordance with Article 159(2) of the Constitution.

Failure to join the Deputy Governor

23. Finally, the question on the implications of failure to join the Deputy Governor to these proceedings. It is not in dispute that the Deputy Governor was not joined as a party to these proceedings. Counsel for the respondent advanced the view that failure to join the Deputy Governor was fatal to the petition. Mr. Mungai submitted that the position of Deputy Governor is an elective position. He pointed out since one of the prayers in the petition sought nullification and an order for fresh elections, if granted, it would result in the removal from office of the Deputy Governor as well. Thus, if not joined, the Deputy Governor would be denied the right to a fair hearing under Article 50of the Constitution which is an absolute right.

24. Furthermore, Article 180(5)and(6)contemplates the election of a Deputy Governor and therefore, the election of both positions is intertwined and inseparable, being elected in the same election and a petition challenging election of a Governor should also include the Deputy Governor. The court was also urged to find that Mr. Polycarp Igathe was duly elected as Deputy Governor on account of the definition of a respondent by the Rules and the gazettement of election of Governor and Deputy Governor on 18th August 2017. Reliance was placed on the decision in the case of Josiah Taraiya Kipellan Ole Kores v Dr. David Ole Nkedienye & 3 Others (2013)eKLR.

25. The respondents also advanced the view that one of the ways of removal of a Governor under Article 182(e) is through the settlement of electoral disputes under Article 87, thus, removal from office following a successful election petition. Further, Article 182(2) provides for assumption into office of the Deputy Governor following a vacancy in the office of Governor. Thus, it was submitted, the position is not ceremonial and vacation from office by a Governor even by a successful petition does not mean the office of the Deputy Governor becomes vacant as well. Further, seeking a fresh election in Nairobi City County can only be done by removing the Governor and the Deputy Governor as well who, under the Constitution remains in office upon vacation of office by the Governor. It was therefore, urged that the petition is incurably defective for failing to join a critical party and should be struck out.

26. The court was urged in this respect to adopt the view held recently by the court in the case of Mwamlole Tchappu Bwana v IEBC & 4 OthersMombasa High CourtElection Petition 5 of 2017,while being urged to not to follow the decisions in Wavinya Ndeti & Another v IEBC Machakos High Court Election Petition No. 1 of 2017and Hassan Omar Hassan & Another v IEBC both of which were relied on by the petitioners. The court was urged to find that the petitioners had already lost an opportunity to amend the petition to correct any defect and therefore, the court should strike out the petition as it lacks jurisdiction to proceed on an incurably defective petition.

27. This issue of failure to join the Deputy Governor has been a subject of determination in other petitions. One of the contentions was whether the position of Deputy Governor is an elective position. Counsel for the 1st and 2nd respondents also contended that the position is elective; thus, a Deputy Governor should be a mandatory party in an election petition. This question arose in the case of Josiah Taraiya Kipellan Ole Kores v Dr. David Ole Nkedienye & 3 Others(supra) where the court, held the view that the position of Deputy Governor is elective and stated as follows:

A candidate for Deputy Governor only assumes such a position by being a nominee of the successful candidate of County Governor. Under Regulation 51 of the Elections (General) Regulations 2012 the Returning Officer is required to issue a nomination certificate to a candidate who is validly nominated to contest for the County Governor position. No such certificate is given to a running mate. It would seem that the law only contemplates one elective post in the gubernatorial election and that is the post of County Governor. That notwithstanding, however, the Constitution directs the IEBC to declare a Deputy Governor nominated by a person subsequently elected to have been elected Deputy Governor. To my mind, this means that the election of Governor and his Deputy is one ticket. When electing the Governor, the voters likewise elect the Governor’s Deputy. The nomination of the Deputy Governor is prior to and not after election. Although it is not a direct election, it remains an elective post since the name of the Deputy Governor must be in the Ballot paper. A purposive interpretation of the Constitution in my view will lead to no other conclusion than that the Deputy Governor’s position is elective. This is because of the requirement that the deputy’s qualification must be akin to those of the Governor and once a vacancy in the Governors position arises no by election is to be held but automatic assumption of office of Governor by the Deputy. To my mind therefore the election of Governor cannot be separated from that of his deputy. I therefore hold that the post of Deputy Governor is elective and therefore susceptible to an election petition as is a Governor’s seat.

28. The question of whether or not a Deputy Governor ought to be joined as a party in the proceedings has attracted two opposing views. On the one hand, some courts have found that the Deputy Governor ought to be joined, and that failure to do so would render the petition defective. This is the view that was advanced by the respondents. It was also adopted in the case of Mwamlole Tchappu Bwana v IEBC & 4 Others(supra) where the court held that a Deputy Governor is elected and ought to be joined as a party. It reasoned that:

46. …it is clear and it is not disputed that the governor is directly elected by the registered voters in the county. As regards the deputy governor, Article 180(5) requires each candidate for election as governor to nominate a person qualified for nomination for election as county governor as a candidate for deputy governor. Article 180(6) provides that no separate election shall be conducted for the deputy governor. The provision then goes on to state that the candidate nominated by the person who is elected county governor shall be declared “to have been elected as the deputy governor.” The clear reading of the wording of that provision is that once a governor is elected then the person he nominates shall also be declared to have been elected as the deputy governor. I am therefore not persuaded by the argument that the deputy governor is merely nominated and not elected.

29. The court held that the Deputy Governor ought to be given an opportunity to be heard since he would be adversely affected were the petition to succeed, noting that it would be unjust to deprive the views of the deputy governor who upon assuming office accrued some rights that ought to be preserved. The court held that such joinder was necessary irrespective of whether there were allegations specific to the Deputy Governor, stating as follows:

57. Going back to the submission that the Petitioner has no complaint against the deputy governor and thus did not need to enjoin her as a co-respondent, the question begs, if this Court were to allow the Petition and nullify the election of the governor, what would be the fate of the deputy governor? It must be borne in mind that upon election of the 5th Respondent, the deputy governor was also declared to have been elected as deputy governor in line with Article 180(6). The deputy governor was issued with her own Form 37D being the certificate declaring her as duly elected. Through what legal process, instrument or order will the Form 37D issued to the deputy governor be vacated, set aside or quashed if she is not a party herein?

58. What would happen if upon nullification of the election of the governor, the deputy governor declines to vacate office on the ground that she is not aware of the proceedings or of any order against her? What if she insists on assuming the position of county governor of Kwale County under Article 182(2)? My view is that she would be within her legal right to so insist.

30. The court proceeded to hold the view that removal of the Governor from office includes removal of the Deputy Governor following a successful petition, stating as follows:

59. The law relating to electoral disputes is anchored in the Article 87 of the Constitution of Kenya 2010. The removal of a governor from office by means of a successful election petition is therefore removal from office under the Constitution.

60. .. As a matter of fact there is no law that requires the deputy governor to vacate office upon nullification of a governor’s election. Nor is there any law that bars the deputy governor from assuming office of the governor upon a vacancy in that office arising by means of a nullification of the election of the governor

31. A similar view has been advanced in the latest decision touching on the same issue in the case of Joel Makori Onsando v Independent Electoral and Boundaries Commission & 4 Others Kisii High Court Election Petition No. 3 of 2017 (Consolidated with No. 7 of 2017). The court stated that the position of deputy govern was not merely collateral holding that:

…to condemn the deputy governor unheard, and expect him to vacate office in the event of a county governor losing his position-whether as a result of a successful election petition or any of the events listed under Article 182(1) of the Constitution would be defeating the constitutional provisions ad indeed violating a party’s right to a hearing under Article 50 of the Constitution of Kenya. It is imperative that a person who is likely to be adversely affected by a decision be heard.

32. The other opposing view is that a deputy governor was not a mandatory party and failure to join him in the petition was therefore, not fatal. In Wavinya Ndeti & Another v.Independent Electoral & Boundaries Commission & 2 Others Machakos High Court Election Petition No. 1 of 2017 the court advanced the view that a stating thus:

It is clear from these provisions that a governor is directly elected by registered voters in a county. He nominates a running mate to be on the same ticket with him. If he is elected the running mate becomes the deputy governor who is deemed to be elected. In other words, the deputy governor is not directly elected by voters in the county. He will only assume office of the governor if it falls vacant under any of the circumstances under Article 182. If the validity of the election of the governor is successfully challenged by petition, then both him and the governor will leave office. In my view, unless there is an election act or omission alleged against a deputy governor during the election of the governor he will not become a necessary party in the election petition filed against that the governor. He will not be a respondent in the petition. The governor will be the respondent in the petition because he is the one who has been directly elected in the election, and he is therefore the one who will cease to hold office if the election is validly and successfully challenged. The deputy governor will be collateral damage, as it were. The governor is the person whose election is complained of under rule 2, hence his being made a respondent.

33. In Hassan Omar Hassan & Another v Independent Electoral & Boundaries Commission & 2 Others Mombasa High Court Election Petition No. 10 of 2017 the court held as follows:

“A reading of Article 180(1) clearly indicates that it is the County Governor who is elected directly by the voters registered in the County and as such, in the event an election petition against a County Governor results in a nullification of the results, the Deputy County Governor no matter how compelling a case he/she may put forward, suffers the same fate as the Governor by dint of having assumed office through the same irregularly declared ticket

...

As when the requirements under Article 182(2) are triggered into application, I am of the same mind as Ong’undi J in the case of Kithinji Kiragu (supra) where she stated that:

“This Court’s view is that the provision of Article 181 and 182 concern a validly elected Governor. If the election is challenged and the Governor is found to have been unlawfully elected, then it means he/she has to vacate office alongside his/her deputy.”

34. Similarly in Lesrima Simeon Saimanga v Independent and Electoral Boundaries Commission & 2 others[2017] eKLR,the court held that:

“it is clear that the Governor is directly elected by registered voters in his County and he nominates a running mate. It means that the Deputy Governor is not directly elected by the voters and can only assume the office of Governor if it falls vacant as envisaged under Article 182. ..

In Rule 9 of the Rules, the IEBC is the only party that is mandatorily required to be a respondent in every election petition. In this case, the person who was elected as the Governor is the person whom a challenge can be brought as to the validity of his election. So, where the election of the Governor is successfully challenged in an election petition, then the Deputy Governor would leave office too. Flowing from Rule 2 & 9, unless there are specific allegations made against the Deputy Governor, during the election of the Governor, then it would not be necessary for him to be made a party to the election petition filed against the Governor. The Governor will be the respondent in the petition because he is the one who was elected and would cease to hold office if the challenge is successful. Since the Deputy Governor’s office is pegged on the election of the Governor, the Deputy Governor would cease to hold office too because he would have assumed office through an irregular process.”

35. The law recognizes the position of Deputy Governor. However, unlike a governor, the deputy governor is not directly elected. Article 180(1) provides that a governor shall be directly elected by the registered voters of the county. A governor, unlike a deputy governor, must first be nominated by a political party through party primaries or present independent candidature. Thereafter must be cleared by the IEBC to be eligible to stand an election.

36. The entry point for a Deputy Governor is nomination by a person who wishes to present himself for the candidacy of Governor under Article 180(5). This is a very exclusive process done by the Governor, at which point the direct participation of the people is not present. In fact, under Article 180(6) the IEBC is directed not to carry out separate elections in respect of the position of Deputy Governor but shall declare the candidate nominated by the person who is elected county Governor to have been elected as the Deputy Governor. The position of Deputy Governor therefore assumes elective status when eventually declared so following the win of his nominating candidate for the position of the governor.

37. The Elections Act under Section 2 defines an election as a presidential, parliamentary or county election and includes a by-election while a county election is defined as as one of the election of a county governor or a member of a county assembly.’ A Deputy Governor is not included in this definition. A candidate is defined under this provision a ‘person contesting for an elective post’. A deputy governor’s candidacy is joined to that of the governor. Section 39(1A)(ii),makes reference to county governor. The Elections Act and Regulations make provision for issuance of certificate of elected county governor only. The positon of Deputy Governor is therefore not a distinctly elective, and is dependent on the governor’s candidacy. While the Constitution recognizes the position of Deputy Governor, there is no specification in statute, that he should be a party to a petition. The court cannot impose a Deputy Governor into a petition.

38. Respecting the argument that removal from office under Article 182(1)(e) of the Constitution includes removal as a result of a nullification following a successful election petition as this court was urged to find, it would mean that the Deputy Governor would be entitled to take over office from the Governor as provided for under Article 182(2). This proposition does not appeal to this court. This is because the consequences following a successful election petition are different from those contemplated under Article 182 of the Constitution. No vacancy exists after nullification, while under Article 182 a vacancy exists hence the assumption of office by the Deputy Governor. Once an election is nullified, the Governor and his deputy no longer have the legal mandate to hold their respective positions and therefore, the Deputy Governor cannot assume the office.

39. It was argued that failure to join the Deputy Governor violates his right to a fair trial. I observe in this regard that not a single allegation has been made against the Deputy Governor to require his answer. How can it be said that he has been denied a fair hearing? It is instructive to note that in all cases where this issue has been raised, Deputy Governors have not made any attempt to join the proceedings.

40. The decisions by the courts of concurrent jurisdiction I have cited above are not binding on me and may only be of persuasive value. I am inclined to agree with the findings of non-inclusion of the deputy governor in an election petition. On my part, therefore, believing I am right in the appreciation and interpretation of the law alongside the attendant circumstances, I find that the Deputy Governor is not a mandatory party in an election petition. Failure to join a Deputy Governor in my view ought not invalidate a petition.

41. In view of the foregoing, the Preliminary Objection by the 1st and 2nd respondents and the application by the 3rd respondent must fail. They are hereby dismissed. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF DECEMBER 2017

A. MBOGHOLI MSAGHA

JUDGE

In the presence of:

For the petitioners Ms. Maumo and Mr. Odinga

For the 1st and 2nd respondents Mr. Nani Mungai and Ms. Mathee

For the 3rd respondent Mr. Kinyanjui and Miller