[2013] KEHC 3446 (KLR)

REPUBLIC OF KENYA

High Court at Malindi

Election Petition 13 of 2013 [if gte mso 9]><![endif]

ELECTION FOR THE SENATOR OF KILIFI COUNTY

KUMBATHA NAOMI CIDI................................................................PETITIONER

VERSUS

THE COUNTY RETURNING OFFICER, KILIFI.............................1ST RESPONDENT

THE SECRETARY, THE INDEPENDENT

ELECTORAL & BOUNDARIES COMMISSION ...........................2ND RESPONDENT

THE INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION...................................................3RD RESPONDENT

STEWART MADZAYO...............................................................4TH RESPONDENT

RULING

The 4th Respondent Hon. Stewart Madzayo filed a notice of motion dated 13th May 2013 on the same day seeking for dismissal of the petition filed against him and three others by Kumbatha Naomi Cidi. The application was based on two grounds: that of non-service of the petition on the 4th Respondent and that of failure to deposit Kshs.500,000/= as required by the law. An undated notice of motion was filed by the 1st, 2nd and 3rd Respondents who are the returning officer of Kilifi Constituency, the Secretary to the Independent Electoral and Boundary Commission and the Commission itself. The motion sought for dismissal of the petition on similar ground relied on by the 4th Respondent. The two motions were consolidated and heard together.

In her petition dated 08/04/13 and filed on the same day the petitioner seeks for nullification of the election of the Senator for Kilifi County Mr. Stewart Madzayo in the General election held on 4th March 2013. The allegations of massive fraud, irregularities and election offences were cited on the part of the respondents. The petitioner avers that she was a candidate for Senator for Kilifi County and urges the court to declare that the 4th respondent was not validly elected and that the petitioner should be declared the winner in the elections.

The grounds supporting this application are that the petitioner has failed to comply with Rule 11 and13of the Election (Parliamentary and County Elections) Petition Rules, 2013. Mr. Mrima for the 4th Respondent and Mr. Moya for the 1st, 2nd, 3rd Respondents submitted that the requirement of the deposit under Section 78(2) of the Act and Rule 11 is mandatory and that failure to comply with the rule renders the application fatally defective. The failure to serve the petition within the required time is also fatal to the petition according to the respondents. The respondents argued that whether the petition was served or not, they are entitled to costs in the event of dismissal of the petition. The counsels submitted that it was after reading the Gazette Notice by the Chief Justice allocating election petitions to judicial officers that the respondents came to learn that there was a petition filed against them by the petitioner.

The petitioner's counsel Mr. Kithi argued that since the petitioner did not serve the petition on the respondents, then she is not liable to pay costs. The respondents were in court for the mention on 13th May 2013 after the court served them with mention notices. Mr. Kithi further submitted that the failure to make the required deposit does not make the petition fatally defective.

The Election Act, 2011 provides for the conduct of elections for the Office of the President, National Assembly, Senate, Governor and County Assembly. It also provides for election dispute resolution. The rules were developed for the sole purpose of prescribing guidelines on how any aggrieved party may seek judicial remedy in the event of violation of their rights under the Act. Any person approaching the court must comply with the guidelines.

In regard to the deposit of security for costs the Section 78 (2)of the Elections Act and Rule 11(1) provide:

Original file copy

S.78(2) - A person who presents a petition to challenge an election shall deposit -

(a) one million shillings, in the case of a petition against a Presidential candidate;

(b) five hundred thousand shillings, in the case of petition against a member of Parliament or a county governor; or

(c) one hundred thousand shillings, in the case of a petition against a member of a county assembly

Rule 11(1) - “Within ten days of filing an election petition under these Rules, a petitioner shall deposit security for the payment of costs that may become payable by the petitioner as provided under Sections 78(2((b) and 78(2)(c) of the Act.

The petition was filed on the 8th April 2013 within the 28 days prescribed by the law. The period of ten days allowed for the deposit of the security for costs expired on 18th April 2013. The petitioner failed to deposit the security within the required period. By the time the first application for dismissal dated 10th May 2013 was filed, it was over 30 days from the filing of the petition.

Rule 20 provides for extension of time where a party has failed to do the required activity within the time provided by the rules. The petitioner in this case did not apply to the court for extension of time to deposit the security. Neither was such an intention expressed during the hearing of this application.

Original file copy

Rule 13(1)provides:

“The petitioner shall serve the Respondent with an election petition filed under these Rules, within fourteen days of filing of the petition.”

It is not disputed that the petitioner failed to serve the petition on the respondents and that the respondents came to know of the existence of the petition from other sources of information other than service by the petitioner. The fourteen days allowed by the rules for service expired on the 22nd April 2013. There was no extension of time sought by the petitioner. The application to dismiss this petition was filed over thirty (30) days after filing the petition. The petitioner seems to have lost interest in the petition soon after filing it and chose not to take any action in that regard.

The court needs to determine what the consequences of non-compliance with Section 78 (2)and Rule 11(1) on one hand and Rule 13(1) on the other hand.

Although the petitioner argued that non-compliance with the rules does not affect the validity of the petition, she did not explain what steps she intended to take to breathe life into the petition at this late hour. Having taken no action towards reviving the petition, the petitioner must bear the consequences of his omission.

It is important for the court to examine the law to find out what the intention of the legislature was when it enacted the provision for requirement of the deposit for security in Section 78(2)of the Elections Act. The repealed National Assemblyand Presidential Elections Act, Cap 7 contained a similar provision which required that a petitioner deposits Kshs.250,000/= within three days of filing the petition. The provisions of Section 78 (2) of the Act and Rule 11(1) are very clear that the deposit is for the

purpose of payment of costs that may become payable by the petitioner to the other parties in the case. The provisions state in no uncertain terms that where a petitioner does not deposit security as required by the law, no further proceedings shall be heard on the petition and the respondent may apply for dismissal of the petition and for payment of costs.

In the case of Esposito Franco vs. Amazon Kingi Jeffa & 2 others Civil Appeal Application No. 248 of 2008 the court observed:

“We are in agreement with the respondents that the requirement that an aggrieved party remits security for costs upon filing an Election petition is to restrict the would be vexatious litigants from coming to court and ensure that the party who comes to court is serious and will be able to pay the costs in the event he is required to do so.”

The legislature therefore intended to cure the mischief of vexatious litigants as well as protecting the respondent's rights of costs in the event that the petition is not successful.

The case of a petitioner who deposits security out of the time limit provided by the rules will be treated differently from that of a petitioner who fails to deposit the security at all. It has been held in several decisions that failure to deposit the security within the time allowed is not fatal to the petition. I agree with this view for the reason that the court must have regard to the overriding objective in the case before it as opposed to non-compliance with the rules. However, the court shall have regard to all the relevant provisions of the law in determining the relevant application.

In the case before me, it is not in dispute that the petitioner failed to deposit the security. Even after the expiry of the fourteen days period allowed by the law, the petitioner took no steps to demonstrate any intention to comply with the legal requirement. The failure to deposit the security defeats the intention of the legislature to protect the respondent who may incur costs that cannot be recovered. Failure to deposit the security is not a mere irregularity that can be wished away. The court in the case of Esposito Franco made it very clear that the party in breach must bear the consequences set out by the law.

Taking into consideration the provisions of Section 78(2) and Rule 11(1), it follows that Original file copy this petition is fatally defective and cannot proceed for hearing. In these circumstances, the court has no legal basis to entertain any further proceedings in accordance with the provisions of Section 78(3) of the Act.

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

Original file copy

The petitioner argued that she is not liable to pay the costs of the suit for the reason that she did not serve the petition on the respondents. The respondents learnt of the existence of the petition through the Kenya Gazette Notice for allocation of petitions for hearing.

Rule 23 provides for the mode of withdrawing the petition if the petitioner so desires. It appears the petitioner herein did not want to travel the long road of withdrawing the petition. She chose to leave it to the respondents and the court to exercise the options provided by Rule 23.

If the petitioner had applied for leave of the court to withdraw and served the respondents by the time the Chief Justice's gazette notice was issued, the respondents would not have taken any action in the petition. As such, no expenses would have been incurred by the respondents. To the contrary, the respondents honestly believed that the petition against them would take the normal course and proceed for hearing.

The 1st, 2nd and 3rd respondents obtained a photocopy of the petition from the court through the Deputy Registrar and proceeded to prepare and file their responses on 08/05/13. It is correct to say that the respondents came to court for the mention of the petition on 13th May 2013 after they were served with mention notices by the Deputy Registrar. However, the notice of the Deputy Registrar came one day after the 1st, 2nd and 3rd respondents had filed their responses. The Deputy Registrar had to call the 1st, 2nd and 3rd respondents for mention because their responses bearing the particulars of their counsels were in the court file. As for the 4th respondent, he had filed his notice of appointment on 29th April 2013. A letter to the Deputy Registrar by the 4th respondent's advocate dated 26th April 2013 shows that the counsel was in communication with the Deputy Registrar on the petition. The letter was to inquire whether the security had been deposited. The date of the letter was exactly seven (7) days after the gazette notice of the Chief Justice affirming the Respondents' claim that they learnt of the petition from the gazette notice. Having the contacts of the respondents' advocates in the court file, the registrar and was justified to invite them for the mention of the petition.

I come to the conclusion that it is the action of the petitioner and his indecisiveness on the petition which caused the respondents to instruct their advocates to defend the petition. The petitioner cannot therefore escape payment of costs. Costs follow the event and the petitioner must take responsibility. The respondents are therefore entitled to costs in regard to any lawful expenses incurred in this petition.

Consequently, this petition is hereby struck out for non-compliance with the law and the costs are awarded to the respondents.

Original file copy

F. MUCHEMI

JUDGE

Rulingdelivered and dated this21stday ofMay 2013in the presence Mr. Moya for 1st and 2nd Respondents and holding brief for Mr. Mrima for the 4th respondent.

F. MUCHEMI

JUDGE

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