[2018] KECA 533 (KLR)

IN THE COURT OF APPEAL

AT NAKURU

(CORAM: WAKI, SICHALE & KANTAI, JJ.A.)

ELECTION PETITION APPEAL (APPLICATION NO. 7 OF 2018)

BETWEEN

LESIRMA SIMEON SAIMANGA...................APPELLANT/RESPONDENT

AND

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.................1ST RESPONDENT/APPLICANT

RETURNING OFFICER,

SAMBURU COUNTY................................2ND RESPONDENT/APPLICANT

LENOLKULAL MOSES KASAINIE......3RD RESPONDENT/APPLICANT

(An Appeal from the decision of the High Court of Kenya at Nyahururu, (Wendoh, J.) dated 23rd February, 2018

in

ELECTION PETITION NO. 1 OF 2017)

********************************

RULING OF THE COURT

The applicant, LESIRMA SIMEON SAIMANGAwas one of the candidates for the Gubernatorial Election for Samburu County during the general elections of 8th August, 2017. According to the INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (the 1st respondent), LENOLKULAL MOSES KASAINIE(the 3rd respondent) was declared the winner by the Returning Officer, Samburu County, and (the 2nd respondent). The applicant was dissatisfied with the poll outcome and challenged the results thereof by filing Petition No. 1 of 2017 in the High Court at Nanyuki which was later transferred to Nyahururu High Court and designated as Nyahururu Election Petition No. 1 of 2017. On 23rd February, 2018 Wendoh, J. sitting in Nyahururu High Court dismissed the appellant’s petition. The appellant was aggrieved by the dismissal of his petition and filed an appeal before this Court.

During the pendency of the said appeal, the 1st and 2nd respondents filed a Notice of Motion dated 10. 4.2018 and sought the following order, inter alia:

“1. THAT the appellant’s Record of Appeal dated 23rd March, 2018 and served on the respondents on the 4th day of April, 2018 be struck out as there is no Notice of Appeal on record as contemplated under Rule 6 of the Court of Appeal (Election Petition) Rules, 2017. ”

The motion was supported by the affidavit of LAWRENCE MACHARIA KARANJA, the 1st and 2nd respondents’ counsel on record in which he deponed “that there is no Notice of Appeal and the purported document filed in the High Court is not a Notice of Appeal as contemplated under the Court of Appeal (Election Petition) Rules, 2017”. The motion was supported by the 3rd respondent in an affidavit sworn by his counsel, JOSEPH MWANGI, on 21st April, 2018.

The appellant resisted the motion by filing a Notice of Preliminary Objection dated 23rd April, 2018 and in the main, contended that:

“The 1st and 2nd respondents/applicants are bringing this Application out of the time stipulated under rule 17 of the Court of Appeal (Election Petition) Rules, 2017 which clearly states that a person affected by an election petition appeal may, within seven days from the date of service of this notice of appeal or record of appeal, as the case may be, apply to the Court to strike out the notice or the record of appeal on the ground that no appeal lies or that some essential step in the proceedings has not been taken within the time prescribed by these Rules: and (2) Where no application is filed within the period stipulated under sub-rule (1), a person may not raise the issue later.”

On 25th April, 2018 the motion came before us for hearing. Mr. Karanja, learned counsel for the applicant urged us to find that there is no Notice of Appeal as contemplated by the Court of Appeal (Election Petition) Rules 2017 that came into effect in July 2017 (hereinafter “the 2017 Rules”); that rule 6 thereof provides that a Notice of Appeal be filed in the Court of Appeal and not in the High Court; that the rules provide for the format and the contents of a Notice of Appeal; that the grounds of appeal must be stated therein as opposed to setting them out in a separate memorandum of appeal and further that S.85A of the Elections Act vests the court with jurisdiction to hear appeals only on matters of law. According to counsel, the jurisdiction of this court is triggered by the filing of a valid notice of appeal and in view of the fact that there is no valid notice of appeal in this matter, we should down our tools. He cited several authorities in support of his propositions. As to the contestation of the date of service of the record of appeal, counsel maintained that his office was served on 4th April, 2018 through a “Matatu” driver. Six days later on 10th April, 2018, the motion was filed within time.

Mr. Mwangi, learned counsel for the 3rd respondent supported the motion. It was his submission that in the event of conflict between the 2017 Rules and the Court of Appeal Rules 2010 then as per Rule4(3) of the 2017 Rules, the former prevail.

In opposing the motion, Mr. Mombo, learned counsel for the applicant submitted that whereas the Notice of Appeal was filed at the High Court of Kenya in Nyahururu, the appellant subsequently notified the Court of Appeal registry at Nakuru. He attributed the confusion as to the place of filing to the Court of Appeal registry. In his view, the irregularity (if any) is cured by Article 159 of the Constitution which provision underscores the need to administer justice without undue regard to procedural technicalities. In support of his preliminary objection counsel urged us to find that the 1st and 2nd respondent’s motion was brought outside the 7 days from the date of service contrary to Rule 19(1) of the Rules.

In a brief response, Mr. Karanja urged us to find that Article 159 of the Constitution is not a panacea for flouting rules.

We have considered the motion filed by the 1st and 2nd respondents, the affidavit in support of the motion, the affidavit filed on behalf of the 3rd respondent, in support of the motion, the Notice of Preliminary Objection filed by the applicant, the written submissions, the oral submissions made before us, the authorities cited as well as the law.

It is not in dispute that judgment in respect of Nyahururu Election Petition No. 1 of 2017 was delivered on 23rd February, 2018 in Nyahururu High Court. As stated above the appellant was dissatisfied with the outcome of the trial. He sought recourse by way of an appeal to this Court pursuant to the 2017 Rules which provide for the filing of an appeal in the event of a party being dissatisfied with the outcome of an election petition. It states:

“6(1) A person who desires to appeal to the Court shall file a notice of appeal, which shall be lodged in quadruplicate in the registry.

(2) A notice of appeal shall be filed within seven days of the date of the decision appealed against.

(3) A notice of appeal shall be in separate numbered paragraphs and shall-

(a) Specify whether all or part of the judgment is being appealed and, if part which part;

(b) Provide the address for service of the appellant and state the names and addresses of all persons intended to be served with copies of the notice; and

(c) Contain a request that the appeal be set down for hearing in the appropriate registry.

(4) It shall not be necessary that the decree or order be extracted before lodging a notice of appeal.

(5) A notice of appeal shall be substantially in the Form EPA 1 set out in the schedule and shall be signed by or on behalf of the appellant.”

Thereafter the appellant filed a Notice of Appeal (dated 26th February, 2018) at Nyahururu High Court. The said notice which appears at p.1166 of the record reads as follows:

“REPUBLIC OF KENYA

IN HIGH COURT OF KENYA AT NYAHURURU

PETITION NO. 1 OF 2017

IN THE MATTER OF ARTICLES 1,2,3,10,27,38,81,86 AND 249 OF THE CONSITUTION

AND

IN THE MATTER OF SECTION 39 OF THE ELECTIONS ACT, 2011 AS AMENDED IN 2016 AND 2017

AND

IN THE MATTER OF REGULATIONS 3,4,7,79 AND 84 OF THE ELECTIONS (GENERAL) REGULATIONS AS AMENDED IN 2017

AND

IN THE MATTER OF ELECTIONS (PARLIAMENTARY & COUNTY ELECTIONS) PETITION RULES 2013)

AND

IN THE MATTER OF THE ELECTIONS OF THE GOVERNOR OF SAMBURU COUNTY ON 8TH AUGUST, 2017

BETWEEN

LESIRMA SIMEON SAIMANGA................................................ PETITIONER

AND

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION ……………………….… 1ST RESPONDENT

RETURNING OFFICER SAMBURU COUNTY..............2ND RESPONDENT

LENOLKULAL MOSES KASAINIE ……3RD RESPONDENT/APPLICANT

Take Notice that LESIRMA SIMEON SAIMANGA being dissatisfied with judgment/order of Hon. R.P.V. Wendoh J. given at Nairob(SIC)on the 23rd day of February 2018 intends to appeal against the whole of the decision/Judgement.

The address of service of the appellant is C/O George Gilbert & Mombo Advocates, Uchumi House, 8th floor, Suite 88, Aga Khan Walk, P.O. Box 73519-00200 Nairobi.

It is intended to serve copies of this notice to

(a)J.W Mwangi & Co. Advocates, Buttsons Complex, 1st Floor, Laikipia Road, P.O. Box 1244-10400, Nanyuki.

(b) Mirugi Kariuki & Co. Advocates, Inder Singh Building 2nd floor, Kenyatta Avenue P.O. Box 689-20100, Nakuru.

Dated at NAIROBI THIS 26th day of February 2018.

GEORGE GILBERT & MOMBO ADVOCATES

ADVOCATES FOR THE APPELLANT.”

We have set out the said Notice of Appeal inextenso as several legal issues arise therefrom.

Firstly, it is clear from the provision of Rule 6 of the Rules that a litigant who desires to file an appeal arising from an election dispute, has to file the Notice of Appeal in the Court of Appeal registry within 7 days of the date of the decision. In the definition section of the Court of Appeal (Election Petition) Rules, “registry’ means the “registry of the court and includes a sub registry”. In the same section, Court is defined as the Court of Appeal. It is admitted that the appellant herein did not file the Notice of Appeal in the Court of Appeal Registry, but instead filed it at the High Court Registry at Nyahururu. In addition, the notice was not in the format as provided in Rule 6(5) and it did not set out the grounds of appeal as contemplated therein.

Further, the Notice of Appeal filed by the appellant indicates that it is “…against the whole decision/judgement.” As pointed out by Mr. Karanja, learned counsel for the applicant S.85Aof the Elections Act vests this Court with jurisdiction to entertain appeals arising from election petitions on matters of law only. Section 85A of the Election Act provides as follows:

“(1) An appeal from the High Court in an election petition concerning... the office of county governorshall lie to the Court of Appeal on matters of law …”

To this extent the purported notice was wanting as it sought to challenge the ‘whole’ of the judgment which judgment was based on facts and the law.

Mr. Karanja further contended that a valid notice is what triggers the jurisdiction of this Court. In Boy Juma Boy & 2 Others vs. Mwamlole Tchappu Mbwana & Another 2014 eKLR this Court held that:

“… The jurisdiction of this court as an appellate court can only be triggered through the filing of the notice of appeal. In the absence of such notice the court has no proper basis upon which its jurisdiction can be anchored.”

Similar sentiments were expressed by this Court inAbok James Odera T/A A.J. Odera & Associates vs. John Patrick Machira T/A Machira & Co Advocates, NairobiAppeal No. 161 of 1999 [2013] eKLR whilst citing the case of PePco Construction Company Limited vs. Carter & Sons Limited Nairobi CA No. 80 of 1979 (UR)that:

“ A notice of appeal is what gives this court jurisdiction in any appeal. It is a primary document in terms of Rule 85(1) of the Rules. A record of appeal must contain a valid copy of the notice of appeal. The omission to include a valid copy renders the appeal incompetent…”

The centrality of a Notice of Appeal was further amplified in NicholasKiptoo Arap Korir Salat vs. IEBC & 7 Others [2004] eKLR wherein it was stated that a Notice of Appeal is a primary document that gives a court jurisdiction. Indeed Kiage, J.A. in his judgment referred to it as a “jurisdictional document”. We agree that our jurisdiction is invoked by the filing of a valid Notice of Appeal. It follows that an invalid Notice of Appeal cannot confer jurisdiction upon the Court.

That being the position, there is no valid appeal before us as it is only a proper Notice of Appeal that can give rise to the filing of an appeal. As to whether the respondent can call to aid the provisions of Article 159 of the Constitution, we echo the words of Kiage, J.A in Nicholas Kiptoo Arap Korir Salat (supra). Which were subsequently cited with approval by the Supreme Court to the effect that:

“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This court indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.”

By parity of reasoning the appellant cannot seek refuge under the provisions of Article 159 of the Constitution as this will not avail him. He was duty bound to pay homage to the rules and invoke the jurisdiction of this court by filing a valid Notice of Appeal.

One other issue deserves consideration by us. In the preliminary objection filed by the respondent, he contended that the applicant’s motion was brought outside the stipulated timeline. Rule 19(1) of the Rules provide as follows:

“A person affected by an election petition appeal may, within seven days from the date of service of the notice of appeal or record of appeal, as the case may be, apply to the Court to strike out the notice or the record of appeal on the ground that no appeal lies or that some essential step in the proceedings has not been taken within the time prescribed by these Rules.”

Mr. Mombo submitted before us that he served the Record of Appeal on 29th March, 2018. In his replying affidavit dated 23rd April 2018, Mr. Mombo depones on how service was effected. He states:

“17. That with regards to service on the 1st and 2nd respondents advocate, the record of appeal was also transported from Nairobi to Nakuru via shuttle where upon it was collected by the 1st and 2nd respondent clerk.

18. That on 29th of March 2018 I received a message from the 1st and 2nd respondents advocate via my safaricom line at 8. 08 am where upon he stated “HI, APPEAL YET TO BE SERVED.” (attached hereto and marked “NM2” is a print out of the screen shot)

19. That at 8. 37 am I informed him that the record of Appeal had been transported the previous evening via EMS and he would receive them on the same day.

20. That I further informed him that indeed the Record of Appeal were on its way to Nakuru via shuttle and at 12. 15 pm I sent him the number of the Driver David Muhia who was transporting the Record of Appeal.

21. That at 12. 50 pm he requested me to give the driver his number upon which he would call him upon reaching Nakuru.

22. That later in the afternoon after 3 pm the driver called me and told me he had arrived in Nakuru, upon which I informed Mr. Karanja.

23. That Mr. Karanja then informed me that he had sent his clerk/associate to go and pick the Record of Appeal from the driver and that his messenger would pick the document from the driver.

24. That shortly after I called the driver and he confirmed to me that the documents had been picked by a messenger from Mirugi Kariuki Advocates.

25. That I then called Mr. Karanja who confirmed to me that indeed he had received the Record of Appeal which were now in his possession on his table.

26. That therefore paragraph 1 of the Notice of Motion by Lawrence Karanja the advocate of the 1st and 2nd respondent alleging that he was served on the 4th of April, 2018 is a fabrication and a lie which this court ought to investigate.”

From the above it is clear that the mode of service was unorthodox and this may be the first time that this court is being asked to accept service of documents by an agent who is a “matatu” driver and not an authorized process server! Mr. Karanja maintains that they were served on 4th April, 2018 and not on 29th March, 2018. It was his further contention that they sought to strike out the record of appeal and not the notice of appeal as the latter was a “strange document”. In the absence of proof of service and in view of the attempted service by unorthodox means, we are not persuaded that service of the record was effected on 29th March, 2018. The Notice of Motion having been filed on 10th April, 2018, a period of 6 days had elapsed from 4th April, 2018 and so it was clearly within the timelines set by Rule 19 of the Rules. Hence, we find no merit in the Preliminary Objection raised by the appellant, which we dismiss. The upshot of the above is that the appellant’s Record of Appeal dated 23rd March, 2018 and served on the 1st and 2nd respondents on the 4th day of April 2018 is hereby struck out with costs to the 1st, 2nd and 3rd respondents.

It is so ordered.

Dated and Delivered at Nyeri this 31st day of May, 2018.

P. WAKI

.....................................

JUDGE OF APPEAL

F. SICHALE

.....................................

JUDGE OF APPEAL

S. ole KANTAI

.....................................

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR