[2017] KEHC 1437 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT LODWAR

ELECTION PETITION NO. 1 OF 2017

IN THE MATTER OF ARTICLE 87(2) OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF ELECTIONS ACT NO. 24 OF 2011

AND

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

AND

IN THE MATER OF THE ELECTION FOR GOVERNOR OF TURKANA COUNTY

BETWEEN

JOHN MUNYES KIYONGA.........................PETITIONER/APPLICANT

AND

JOSEPHAT KOLI NANOK ....................................1ST RESPONDENT

INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION....................2ND RESPONDENT

GEORGE OYUGI....................................................3RD RESPONDENT

RULING

The petitioner John Munyes Kiyonga filed this petition challenging the election of Josephat Koli Nanok the 1st Respondent as the Governor of Turkana County in the general election held on 8/8/2017.

The petition was filed in Lodwar High Court. On 29/8/2017 the petitioner filed the present application brought under order 51 rule 1 civil procedure rules 2010 Sec.1A, 1B and 3A civil procedure Act, Rule 4 of the Elections (Parliamentary and County) elections Petition rules 2017 seeking orders

1. That the court directs that all the sessions in this petition be held at Milimani High Court and/or such other neutral venue as the court may appoint.

2. That the honourable court to make any other or further orders as it deems necessary in the interest of justice

The application is premised on the grounds that:-

a)The applicant filed an election petition challenging the alleged outcome of the gubernatorial elections held in Turkana County.

b)It is a constant theme in the petition that violence and intimidation of voters was widespread in Turkana County during the last general election.

c)In the circumstances, it is just and expedient that the trial of this petition be held at Milimani High Court or such other neutral venue where a fair trial can take place.

The application is supported by the affidavit of John Munyes Kinyonga sworn on 29/9/2017 in which he depones:

1. THAT one of the grounds set out in the petition is the widespread violence that took place in Turkana County and the intimidation of voters.

2. THAT it is further contended that the employees of Turkana County Government as well as a number of Chiefs were deployed by the 1st Respondent to campaign and influence the voters.

3. THAT regrettably, due to the hostile tension, there are numerous reports of firearms being in possession of civilian as well as criminal gangs

4. THAT due to the tension, his witnesses are fearful of attending court in Lodwar and have been threatened with dire consequences if they attend court.

5. THAT the hostility which is prevailing will disable his advocate from attending court.

6. THAT conducting court sessions in Lodwar will be to the distinct advantage of the 1st Respondent who will utilize the county Government manpower and resources to intimidate his witnesses and counsel. No fair hearing can therefore take place in Lodwar.

The 1st Respondent opposed the application. The 1st Respondent filed a Replying Affidavit sworn on 12/10/2017 where he depones:

1. That he is of the strong view that the people of Turkana County are by law entitled to be granted unfettered and an unrestrained participation in these proceedings which ultimately will determine the credibility of the civic process that they undertook and articipated in on 8th August, 2017 and for this reason alone, the hearing of this petition ought to be conducted as close as possible to the electorate.

2. That his witnesses are situated in Turkana and should the forum be moved to any place of convenience to the Petitioner, he shall be highly prejudiced and economically challenged in transporting, accommodating and maintaining his witnesses some of whom may refuse to participate in his defence to his infinite detriment

3. That it is indeed appalling that the Petitioner feels insecure in the midst of his own people; the very people he ably represented as Senator and further sought and continues to seek to represent. The petitioner’s apprehensions are insulting, unjustified, unfounded and therefore baseless.

4. That he is further advised that in any event, the judiciary, is not bereft of recourse to assure the security of not only the parties and their advocates but also that of its staff including the Honourable judge of this court and that it has indeed put in place adequate security measures.

5. That in the circumstances, the forum and choice of court cannot and should not be at the convenience of the Petitioner but must instead be at the heart of the electorate, where the votes were case, counted, tabulated, collated and results announced.

6. That in response to paragraphs 3 and 4 of the Petitioner’s affidavit, he is advised that the petitioner is cunningly leading the court into determining issues which are already raised in the Petition and which he has sufficiently responded to. The petitioner is therefore irregularly inviting this court to determine the petition by way of the Application under response.

7. That the petitioner makes a dangerously unfounded statement at paragraph 5 of his affidavit about illegal firearms which he purports are in the hands of civilians and criminal gangs without giving any specificity. Indeed if indeed the Petitioner is seized with such information, he has a civic duty to report the same to the necessary authorities and assist in apprehending the culprits which is not the case.

The court directed that counsel make oral submissions in support of their respective positions. M/s Ngania for the applicant/petitioner submitted that the petitioner has no problem with the hearing of this petition by the election court as gazette by the chief Justice in Gazette No………….of 17/1/2017. What they have problem with is the physical location where the petition is being heard i.e Lodwar High Court. Counsel submitted that the sitting of the election court in Lodwar will pose security challenges as it is likely that their witnesses will be intimidated; the security of the advocates not guaranteed; and that there is tension in Lodwar as a result of the petition, which factors the court should take into account and allow the sitting of the court in any other place other than Lodwar in Turkana County.

Mr. Nyachoti for the 1st Respondent submitted that he would have no problem with the application in its factual and supported by evidence. He submitted that the applicant is seeking to urge the petition through this application. He submits that though the court has discretion to transfer its sitting to any other venue, this discretion must be based on facts and not rumors or unfolded fears of tension. He submits that the people of Turkana have a right to follow proceedings of the petition, and that the cost of transporting and hosting of over 30 witnesses in another station is a factor to be considered.

In reply Mr. Ngania submitted that the fear is not premised on romours or hearsay and that the court should consider the security of the witnesses and not the cost of taking them for another venue.

This petition was filed on 5/9/2017 by the petitioner on 15/9/2017 the Hon chief justice. Pursuant to Section 75 of the Election Act and R. 6(3) of the parliamentary and county election) rules 2012 published gazette Notice No.9060

“directing that the election petition whose details are given hereunder shall be heard in the election courts comprising of judges and magistrates listed sitting at the court stations indicated in the schedule below”

The gazette notice indicated that election petition No.1 will be heard by this election court sitting at Lodwar High Court.

Sec.75 of the elections Act under which the gazette notice was published provides

75(1) A question as to the validity of an election of a County Governor shall be determined by the high court within the county or nearest to the county.

Rule 6(2) of the election (parliamentary and county) petition Rules Provides

6(2) The chief justice may

a)In consultation with the Principal Judge of the High Court designate judges from the purposes of rule 1(a)

b)Designate magistrates for purposes of rule 1 (b) as may be required.

c)The chief justice shall publish the names of the judges and magistrates designated under sub – rule 2 in the gazette and in at least one newspaper of national circulation.

It is pursuant to the above provisions that the Chief justice constituted the election court and directed the place of sitting for the hearing of this petition. This is an administrative decision of the Chief justice in exercise of the powers conferred by the provisions of the elections Act 2011. In my view therefore this court cannot on its own motion or on application transfer the sitting of the court to any other place. The election court can however advise the chief Justice on the question of the need for transfer of the sitting in appropriate cases to another station.

The petitioner application is premised on the issue of security in two aspects

1)Security from intimidation of witnesses

2)General security during hearing of the petition to the witnesses, advocates and staff of the court.

On the issue of intimidation of the witnesses counsel for the applicant submits that these are real threats and alludes to one of their witnesses who has been intimidated and swore another affidavit denying the contents of the one filed. Counsel submits hat unless the sitting of the court is transferred this intimidation will continue. There is no doubt that these witnesses come from Turkana County. They are residing in their homes in the county. They are all known, their witness affidavits having been served on all parties to this petition. How then will the hearing of this petition in another station protect them from intimidation? This court has not been asked to give them protection measures, for instance by relocating them. The sitting of this court in any other place alone will not offer the protection the petitioner is seeking.

The second aspect of the petitioners application is his concern on the security of witnesses, advocates, and staff of Lodwar court during the hearing of the petition as the court is not fenced, access not restricted and with the expected large number of people who wound attend crowd control and maintains of security will be a challenge. Counsel also alludes to general insecurity in the County and the tension arising from this petition. While this are genuine concerns it has not been demonstrated that they are such that the state organs in charge of security will be unable to handle. In my view the concerns raised are genuine which should inform the Judiciary authorities in Lodwar, to make adequate arrangement in conjunction with National institutions charged with this responsibility to provide and maintain security during the hearing, as any breach of security will affect all parties including the staff of the law court.

While I appreciate these concerns I am unable to find that sufficient material has been placed before me to require this court to advise the Hon. Chief Justice on the relocation of the sitting of this election court to any other station.

When sufficient material is placed or shown, this court can on its own motion or on the application of a party take the necessary steps to advise the Hon. Chief Justice accordingly.

In the result I find no merit in this application which is hereby dismissed.

Dated and signed at Lodwar this 2nd day of November, 2017.

S N RIECHI JUDGE