[2022] KEHC 13468 (KLR)

Kwemoi v Hillary & 2 others (Election Petition 01 of 2022) [2022] KEHC 13468 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13468 (KLR)

Republic of Kenya

In the High Court at Bungoma

Election Petition 01 of 2022

DK Kemei, J

October 7, 2022

Between

Tendet George Kwemoi

Appellant

and

Kiptalam Hillary

1st Respondent

Independent Electoral and Boundaries Commission

2nd Respondent

Kipruto Kerich Jeremia

3rd Respondent

Ruling

1. The petitioner through an application dated September 28, 2022 seek the following reliefs: -i.Spent;ii.Spent;iii.That this court be pleased to issue an order for stay of proceedings in Kimilili Principal Magistrate’s Court Election Petition No 2 of 2022 Kiptalam Hillary v Independent Electoral and Boundaries Commission & 2 others pending hearing and determination of this appeal.iv.That the costs of this application be provided for.

2. The application is premised on several grounds on the face of the application and supporting affidavit of Tendet George Kwemoi sworn on September 29, 2022 wherein he averred inter alia; that the 1st respondent filed a petition challenging the applicant’s win in the just concluded August 9th, 2022 general elections; that the applicant herein filed a notice of preliminary objection dated September 9th, 2022 on the grounds that the affidavits annexed to the petition are defective, incompetent and bad in law for want of affidavits in support thereof; that the trial court irregularly granted the 1st respondent’s oral application to rectify the issue of the faulty affidavits and which thus extended time within which a petition may be filed and/ or amended; that the said order by the trial court was an attempt to defeat the applicant’s notice of preliminary objection; that the applicant’s appeal raises crucial points of law and has high chances of success; that the continuation of proceedings in the trial court shall highly prejudice the applicant; that unless this court stays the proceedings in the trial court, the appeal risks being rendered nugatory and/or an academic exercise.

3. The 1st respondent is opposed to the petitioner’s application and filed a replying affidavit dated October 3, 2022 wherein he averred inter alia; that the trial court sought the way forward regarding the applicant’s preliminary objection and proceeded to inform the parties that it was in the best interest of the parties that matters be determined on merit without undue regard to technicalities and subsequently allowed the 1st respondent leave to rectify the anomalies in the supporting affidavits; that the preliminary objection raises issues of fact and cannot be sustained as it doesn’t raise matters of law; that the petition at the lower court is still in the initial stages and will not be affected if stay of proceedings is not granted; that the stay sought will eat into the statutory timelines permissible for election petitions and thus will be prejudicial to the parties and the court; that the application is an attempt to delay the hearing of the election petition; that there is no likelihood of the applicant suffering any prejudice as alleged.

4. The applicant filed a supplementary affidavit dated October 4, 2022 in response to the replying affidavit wherein he deponed inter alia; that the trial court neglected to issue directions regarding the applicant’s pending notice of preliminary objection; that the 1st respondent will not suffer any prejudice if stay of proceedings is granted as the matter is still in its initial stages; that the applicant stands to suffer great harm if stay of proceedings is not granted.

5. The 2nd and 3rd respondents vide an undated notice filed on October 4, 2022 indicated that they do not oppose the applicant’s application dated September 28, 2022.

Background 6. The 1st respondent filed an election petition disputing the August 9, 2022 elections. The Election petition No Kimilili E002/2022 came up for mention on September 23, 2022 for directions on how and when the petition would proceed.

7. The applicant/3rd respondent (in the petition) filed a response to the petition and a notice of preliminary objection dated September 9, 2022 on the grounds that the affidavits annexed to the petition are defective, incompetent and bad in law for want of affidavits in support thereof.

8. The trial court proceeded to issue directions and invited the advocates to propose the best way forward with regard to the preliminary objection. The advocate for theapplicant/3rd respondent (in the petition) insisted on dispensing off with the same and the court brought it to her attention that the issues raised in the preliminary objection were factual, which facts had not been substantiated and that even if they were true, then the irregularity was curable in accordance with the decided cases up to the Court of Appeal level. The court further stated that it is in the best interest of justice that suits, especially of the nature before it to be determined on their merit without undue regard to technicalities.

9. It was only when both the advocates for the parties were in agreement with the position of the court that the magistrate proceeded to make directions granting the 1st respondent (the petitioner in the petition) leave to rectify the anomalies with the supporting affidavits if any.

10. The applicant alleges that his advocates were against the grant of leave by the trial court and that the said order was an irregularity and an attempt to defeat the notice of a preliminary objection that he had filed.

11. The said petition at the lower court is just at the initial stage and no substantial proceedings had been conducted and the preliminary objection is factual and therefore not capable of being sustained in a court of law.

12. I have carefully considered the applicant’s application and the 1st respondent’s affidavit in response, as well as the rival parties’ submission and find that the only issue which arises for determination is whether the applicant has met the threshold to warrant granting of an order of stay of proceedings pending hearing and determination of the appeal as sought in the application dated September 28, 2022.

13. In making the determination whether or not to stay these election petition proceedings, the court must consider and balance several factors. Without being exhaustive, these include:i.The effect of timelines on the proceedings sought to be stayed;ii.The status of the proceedings at the point at which stay is sought;iii.The prejudice likely to be suffered by the parties if the stay is or is not granted.

14. The first consideration is the now hackneyed “tyranny of time” in respect of the determination of election disputes. The law mandates a timeframe of six months. During this period of the trial, a court has to ensure the completion of the trial, filing and arguing final submissions, and the writing and delivery of judgment.

15. In addition, rule 22 of the Election Petition Rules provides:“(1)The court shall conduct trial proceedings as far as is reasonably practicable, on a day-to-day basis until trial is concluded.(2)Despite sub-rule (1), the court in which the trial proceedings have commenced shall not be adjourned for more than five consecutive days.”

16. In light of the above provision, the court can adjourn the proceedings for only a maximum of five days. That, however, is not what the applicant seeks. He seeks a stay of the proceedings to pursue alternative redress before this honourable court. The court cannot, in an election petition, keep the proceeding in limbo until the applicant/3rd respondent has taken concrete steps to secure the alternative redress.

17. It is open to this court under rule 20 Petition Rules, and in the interests of justice, to extend or enlarge the timeframe for the hearing so that it is concluded over a longer period than that fixed by consent of the parties at the pre-trial hearing (which is yet to be conducted by the parties in the trial court). But this is not what the applicant/3rd respondent has requested. If this court were to exercise this option of adjournment, a date of resumption and a clear indication of timelines for the duration of the steps intended to be taken by the applicant prior to the resumption of the hearing, is necessary. Counsel has not helped this court in coming to a decision on this point as with the orders sought the same will not be probable.

18. The second consideration i must take into account is the status of the proceedings. It needs no restatement that these are election petition proceedings, which are conducted under special jurisdiction. In Election Petition No 15 of 2013Clement Kungu Waibara & Another v Francis Kigo Njenga & Others, this court pointed out the unique circumstances of a petition and the strait jacket into which the court is put by the relevant statute. The court cited with approval,Jyoti Basu & Others v. Debi Bhosal & Others reported in AIR 1982 SC,983, where the Supreme Court held as follows:“.... An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, the court is put in a strait jacket....”.

19. In pursuance of the circumscribed environment in which the court operates under the elections statute, the court with the consent of the parties as clearly demonstrated in the certified typed proceedings consented to the court granting the petitioner leave to rectify the position of the petition and allowing the 1st and 2nd respondent’s application dated September 12, 2022 with corresponding leave granted to the petitioner to file further affidavits in response.

20. It is self-evident that the necessary housekeeping modules in form of pre-trial conferencing were yet to commence. The court through its order dated September 23, 2022 granted each relevant party the leave to have the documents they wish to rely upon in order, to which the counsel for the applicant consented. This left the court with the impression that the counsel was proceeding in compliance with the said order. These circumstances and the status of the proceedings are important in assisting this court exercise its discretion as to grant of a stay. I need say no more about this point.

21. The final consideration i need to take into account is whether there will be irredeemable prejudice likely to be suffered by the applicant if the stay is or is not granted. I have used the word “irredeemable” with due consideration, because of the strait-jacket nature of election petition proceedings. The overarching constitutional principle for the determination of election petitions is expeditious disposal. This is contained in article 87 (1) of the Constitutionof Kenya, 2010 pursuant to which parliament is obliged to make regulations to establish mechanisms for “timely settling of election disputes.”

22. This principle impacts on the question of prejudice when a party seeks an order so serious as to stay or arrest election proceedings. In this case, the petitioner is yet to make out his case. He is yet to put his best foot forward and the court is still in the initial pre-trial conferencing stage even as the clock is ticking. He does allege that unless the proceedings at the trial court are stayed, the appeal herein will be rendered nugatory and/or an academic exercise,that his complaint of prejudice arises for the respondents, it is their case that is being disrupted at this stage of the hearing, yet the counsel for the applicant consented to the grant of leave and this too i must bear in mind. Looking at the trial court’s proceedings, it is clear that the applicant’s learned counsel consented to the need for the 1st respondent to rectify his pleadings. If that is the position, there is no evidence that the applicant herein moved back to the trial court to seek for review of the orders and or directions if there was some error apparent on the record or that the counsel’s view was taken out of context by the trial court. A cursory reading of the trial court’s proceedings leaves no doubt that there was a meeting of minds between the counsels and the court and this militates a grant of stay of proceedings pending appeal.

23. This court has to balance the prejudice which will be suffered by the applicant as against that which will be suffered by the respondents if the proceedings are or are not stayed, pending the appeal.

24. If the proceedings are stayed and the Court of Appeal upholds this court’s decision, precious time will have lapsed. If the Court of Appeal, however, upsets this court’s ruling, the petitioner will have a right for proceeding to rectify the position of the affidavit in support of the petition. In the latter case, the parties will have lost precious time.

25. If the present proceedings are not stayed and the Court of Appeal upholds this court’s ruling, both time and expense will have been saved by all parties. If the Court of Appeal upsets this court’s ruling, the parties will have incurred hearing expenses, and will have to re-hear the applicant’s case.

26. On balance therefore, I prefer to err on the side of redeeming precious hearing time in the event that the Court of Appeal were to uphold the ruling. I am therefore not satisfied that this is a proper case in which to order stay of proceedings.This would go against the spirit of article 159(2)(d) which enjoins this court and indeed all other courts and tribunals to administer justice without undue regard to procedural technicalities.

27. Finally, it is noted that the matter before the trial court is yet to begin in earnest for hearing as it is still in the pre-trial conference stage and hence it is possible for the applicant to wrap up his appeal within the shortest time possible. Indeed, a majority of appeals of a civil nature are usually disposed of by way of written submissions and thus once parties have taken directions on the disposal of the appeal, submissions can be filed and exchanged within two weeks. Already, the applicant has filed his record of appeal and thus once directions are taken, the appeal can be concluded expeditiously. In such a scenario, an appeal can be disposed of under a period of one month. Under those circumstances, iam unable to agree with the applicant’s contention that he will suffer prejudice and that the appeal will be rendered an academic exercise if the order for stay of proceedings is not granted.

28. Taking into account the foregoing issues, this court is unable to grant a stay of proceedings. Accordingly, the applicant’s application dated September 28, 2022 for stay of proceedings in Kimilili Election petition Number 2 of 2022 pending appeal lacks merit and is dismissed with costs to the 1st respondent. The deputy registrar of this court is hereby directed to call for the certified record of the lower court within seven days from the date hereof and thereafter the appellant shall within seven days set down the matter for directions on the disposal of the appeal.It is ordered.

DATED AND DELIVERED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022. D. KemeiJudgeIn the presence of:Mrs. Nyiva for Ngaywa for Appellant/applicantMiss Wakoli for 1strespondentMiss Kesei for Miss Wanyama for 2ndand 3rdrespondentsKizito Court Assistant