[2022] KEHC 14849 (KLR)

Kuria v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E001 of 2022) [2022] KEHC 14849 (KLR) (1 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14849 (KLR)

Republic of Kenya

In the High Court at Kiambu

Election Petition E001 of 2022

RPV Wendoh, J

November 1, 2022

IN THE MATTER OF THE CHALLENGE OF THE VALIDITY OF THE MEMBER OF PARLIAMENT JUJA CONSTITUENCY ELECTION, 2022 AND IN THE MATTER OF ARTICLE 1(1); 2(2); 3(1); 4(2); 10; 21(1); 22(1)23;35; 38 (3) (c); 47(2); 48; 81 (1) (a) & (e); 82(2) (b); 84; 86; 87 (2) & (3); 88(5); 165(3)(a) and (e);101 of the Constitution of Kenya AND IN THE MATTER OF SECTION 75, 76 (1), 80 & 82 OF THE ELECTIONS ACT, 2011 AND IN THE MATTER OF SECTION 8, 12, 28 & 29 OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITIONS RULES, 2017 AND IN THE MATTER OF THE AN ELECTIONS BY

Between

Aloise Kinyanjui Kuria

Petitioner

and

Independent Electoral and Boundaries Commission (IEBC)

1st Respondent

Juja Constituency Returning Officer

2nd Respondent

George Koimburi Ndung'u

3rd Respondent

Ruling

1. The instant election petition was coming up for hearing today, on October 31, 2022. Before the commencement of the hearing, learned counsel for the petitioner, Mr Ndegwa Njiru, indicated that he wished to seek the court’s directions. He however went ahead to argue an oral application for striking out of the 1st and 2nd respondents’ response to its petition. Mr Ndegwa contended that the 1st and 2nd respondents filed their response outside the stipulated timelines; that the late filing is an illegality as the rules are cast in stone, that they go to this court’s jurisdiction and therefore the responses ought to be struck out. Counsel submitted that this being an election petition, there are rules which have strict timelines to be followed by all parties, that any late filing goes to the jurisdiction of this court and the failure to file the response in time, divests this court of jurisdiction. He relied on rule 13 of The Elections (Parliamentary and County Elections) Petitions Rules, 2017 (hereinafter referred to as the Rules). Counsel invited this court to consider the findings in Lemanken Aramat v Harun Lempaka & 2 others (2014) eKLR.

2. In a brief rejoinder, learned counsel for the 3rd respondent, Mr Manyara opposed the application, and argued that counsel should come by way of a formal application. He asked this court to find that the application has been brought late in the day and no prejudice will be suffered by the petitioner.

3. Dr Mutubwa learned counsel for the 1st and 2nd respondents submitted that the filing of responses is not cast in stone and reiterated that counsel for the petitioner has not told this court which prejudice he is likely to suffer. He urged that rule 13 cited by Mr Ndegwa is not applicable but that rule 11 provides for filing of responses. He argued that rules are handmaids of justice not mistresses. Counsel further submitted that the case of Aramat (supra) is not relevant as it dealt with timelines of filing a petition which is a constitutional requirement.

4. There is no dispute that the petitioner filed the petition within the required period of 28 days. The 1st and 2nd respondents were required to file their responses within 7 days in terms of rule 11 of the Rules. Counsel for the petitioner did not indicate to the court when he served the 1st and 2nd respondents with the petition. I have however carefully examined the documents on record both in the physical file and in the Case Tracking System (CTS). There is no affidavit of service on record, filed by the petitioner to demonstrate when he served the petition upon the 1st and 2nd respondents. Be that as it may, the documents on record show that the 1st and 2nd respondents filed their notice of appointment of advocates dated September 7, 2022 on September 12, 2022. The presumption therefore is that by the time the notice of appointment of the 1st and 2nd respondents was being filed, the 1st and 2nd respondents had knowledge of the petition. The CTS shows that the response to the petition was filed on September 28, 2022. Going by the timelines provided under rule 11 and computing the time from the date of the notice of appointment, that is on September 7, 2022, the response to the petition ought to have been filed on or before September 14, 2022. The response was filed almost 14 days late, on September 28, 2022. Counsel for the 1st and 2nd respondents did not offer an explanation for the delay in filing their responses.

5. On October 11, 2022, this court held a pre-trial conference. Rule 15 outlines the activities which should take place during the pre-trial. Among others, the election court should determine any interlocutory applications which have been filed or direct on how they should be heard. When the pre-trial conference was held, the court asked the parties whether there was any interlocutory application pending or if there was an intention by any party to file any application. Counsel for the petitioner indicated that the only application he will be making is for scrutiny. Until today, when this petition came up for hearing, there was no application filed.

6. A pre-trial conference is meant to iron out any preliminary issues so that the petition proceeds to hearing with the least interruption bearing in mind the time limits for hearing and determining of petitions is cast in stone ie 6 months. The conference is supposed to ensure that none of the parties is caught up with surprise applications such as the one the court has heard. The 1st and 2nd respondents filed their responses on September 28, 2022 almost one and a half months ago. To raise such issues at this time is unacceptable.

7. The question then is whether the late filing of pleadings is an illegality or an irregularity. Secondly, is whether the petitioner will suffer any prejudice by the late filing of the responses.

8. Rule 19 (1) provides that the court has discretion to order for the reduction or extension of time where an action is required to be done for the purposes of ensuring that injustice is not done to any party. The rule 19 (1) reads:-“Where any act or omission is to be done within such a time as may be prescribed in these Rules or ordered by an elections court, the election court may, for the purposes of ensuring that injustice is not done to any party, extend of limit the time within which the act or omission shall be done with such conditions as may be necessary even where the period prescribed or ordered by the court may have expired.”The exception to the rule is provided for in sub rule (2):-“Sub - rule (1) shall not apply in relation to the period within which a petition is required to be filed, heard and determined.”

9. This is in furtherance to article 105 (2) of the Constitution which provides that questions as to the validity of election of member of parliament shall be determined within 6 months of the lodge of the petition.

10. The law does not envisage a situation whereby it can extend time within which a petition is required to be filed, heard and determined. That is to say, there must be strict adherence to the filing of the petition within 28 days and the time within which it is to be heard and determined is 6 months. The Aramat(supra) case is distinguishable from the circumstances before this court. The Supreme Court was invited to consider whether the High Court and Court of Appeal had jurisdiction to hear and determine an election petition which had been filed thirty-six (36) days after the declaration of the results. The court held that the petition had to be filed within 28 days. As regards other procedural lapses like the one before the court, the Supreme Court held:-“A court dealing with a question of procedure, where jurisdiction is not expressly limited in scope - as in the case of articles 87(2) and 105(1)(a) of theConstitution - may exercise a discretion to ensure that any procedural failing that lends itself to cure under article 159, is cured. We agree with learned counsel that certain procedural shortfalls may not have a bearing on the judicial power (jurisdiction) to consider a particular matter. In most cases, procedural shortcomings will only affect the competence of the cause before a court, without in any way affecting that court’s jurisdiction to entertain it. A court so placed, taking into account the relevant facts and circumstances, may cure such a defect; and the Constitution requires such an exercise of discretion in matters of a technical character.”

11. In Raila Odinga &another v IEBC & 2others (2017) eKLR, the Supreme Court while considering an application seeking to strike out certain affidavits and responses filed out of time held:-“We have considered the application, the affidavit in support thereof, and submission of counsel. The nature of this application is such that were it to be granted, it would dispose of the entire case of the 1st, 2nd and 3rd respondents at this preliminary stage. Such drastic consequences in our view cannot be justified if the scales of justice are weighed in favour of all parties to this petition.”

12. InNicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others (2013) eKLR the Court of Appeal said: -“deviations from and lapses in form and procedures which do not go to the jurisdiction of the court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings.”

13. This court holds the same view as above. The filing of responses out of time, is not reason enough to order the striking out of pleadings. On the question of whether the late pleadings are an illegality so as to oust this court’s jurisdiction, the answer is in the negative. It is an irregularity which this court can cure under its wide and unfettered discretion vested upon it under rule 4 which provides that in executing its duties, this court should facilitate the just, expeditious, proportionate and affordable resolution of election petitions. Rule 11 also gives this court discretion to extend time. Further, rule 5(1) allows this court to cure any failures to adhere to the Rules by making reference to article 159 (2) (d) of the Constitution.

14. The 1st respondent is the Independent Electoral Body which was mandated to carry out an important public duty for the people of Juja constituency through conducting the general election, 2022. It is the main player and their role in assisting an election court in resolving the election dispute before it cannot be gainsaid. Their input in determining the issues in question is important for the furtherance of justice. In addition, in as much as the 1st and 2nd respondents did file their responses late, they have shown keen interest in defending the petition. This court associates itself with the dictum of Ochieng J in Mwambome T Chappu Mbwana v Boy Juma Boy & 2others (2013) eKLR stated:-“The petitioners have not suggested that they would suffer any injustice due to the extension of time. On the other hand, if the responses were struck out, the respondents would become lame ducks literally. They would have absolutely no material of a factual nature, that they would rely upon in answer to the petition. I am therefore convinced that the extension of time, as granted, was in the interest of justice of all parties.”

15. Though the 1st and 2nd respondents did not explain the delay in filing, this court declines to accede to the invitation to strike out the responses of the 1st and 2nd respondents as it would be a draconian step and would be prejudicial to the 1st and 2nd respondents who need to tell their side of the story and striking out is not in the best interest of justice. However, this is not to encourage the conduct of the 1st and 2nd respondents or any other party not to comply with the set rules of procedure because the rules are the handmaids of justice. In that regard, I will condemn the 1st and 2nd respondents to pay thrown away costs in lieu of striking out their pleadings.

16. The following orders do issue:-1. The 1st and 2nd respondents to pay the petitioner thrown away costs of Kshs 25,000/= within five (5) days;2. The 1st and 2nd respondents’ responses are deemed as duly filed, served and properly on record upon compliance with the above order;3. In default of order (1) above, the 1st and 2nd respondents’ responses stand struck out;4. The petition to proceed to hearing as scheduled.

DATED, SIGNED AND DELIVERED AT KIAMBU THIS 1STDAY OF NOVEMBER 2022R. WENDOHJUDGERuling delivered in the presence of;Mr. Ndegwa Njiru for the Petitioner.Dr. Mutubwa and Ms. Anami for the 1st and 2nd Respondents.Mr. Manyara, Mr. Mageto and Ms. Chege for the 3rd RespondentKinyua - Court Assistant