[2022] KEHC 16465 (KLR)

Mahmud v Independent Electoral & Boundaries Commission & 2 others (Election Petition E001 of 2022) [2022] KEHC 16465 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16465 (KLR)

Republic of Kenya

In the High Court at Mombasa

Election Petition E001 of 2022

HK Chemitei, J

December 15, 2022

THE ELECTIONS ACT, 2011 ELECTION (PARLIAMENTARY & COUNTY ELECTIONS) PETITION RULES, 2017

Between

Shallo Omar Mahmud

Petitioner

and

Independent Electoral & Boundaries Commission

1st Respondent

Returning Officer, Mvita Constituency

2nd Respondent

Machele Mohamed Soud

3rd Respondent

Ruling

1. This ruling is in respect to a notice of motion dated October 19, 2022 seeking the following orders: -a.That for reasons to be recorded service of this application be dispensed with in the first instance and the petitioner be granted requisite leave to withdraw the petition herein.b.That the petition dated September 8, 2022 and all subsequent applications be marked as withdrawn.c.That each party to bear their costs.

2. The application is premised on the grounds on the face of it as well as the affidavit sworn by the petitioner on even date. He deposed that he had on his own will and volition chosen to withdraw the petition inter alia without coercion, undue influence and he was no longer interested with the petition filed herein on September 8, 2022. That he was irredeemably disillusioned with the electoral justice system and wish to disengage from it forthwith. Further, that by filing the petition under section 80 (4) of the Elections Act, he expected to secure justice expeditiously in order for the confirmed true winner to be determined to serve the people of Mvita Constituency.

3. He deposed that he was apprehensive that the prolonged electoral contestation over the outcome of the member of National Assembly election will be prejudicial to unity, public interest, cohesion and developmental vision of the people of Mvita Constituency. Further, that after a deep soul searching and reflection during these economic hurdles’ he decided that the time had come for him to sacrifice his political ambitions by withdrawing this petition in order to serve the greater interest and public good of the people of Mvita Constituency and to move on from the divisive electoral politics of 2022. Additionally, that no agreement or terms of any kind had been made and no undertaking had been entered into in relation to the withdrawal of the petition.

4. The 1st and 2nd respondent in response to the application filed a replying affidavit dated November 15, 2022 sworn by one Masha Sudi Mwakulonda the respondent herein. She averred that she was aware that the election for the post of Member of National Assembly for Mvita Constituency, held on August 9, 2022 was conducted. That the results were verified and the outcome declared in accordance with the dictates of theConstitution, the Independent Electoral and Boundaries Commission Act, the Elections Act, the Regulations thereunder and all other relevant provisions of the law. That the petitioner being dissatisfied with the outcome and or results of the elections filed the instant petition.

5. She averred further that the 1st and 2nd respondents do not object to the leave sought by the petitioner to withdraw his petition save that the same be granted with costs in their favour. That to the best of her knowledge and belief, no agreement or terms of any kind had been made and that no undertaking had been entered into, in relation to the withdrawal of the petition.

6. The 3rd respondent also in response to the application herein filed a replying affidavit dated November 11, 2022. Like the 1st and 2nd respondents he did not object or oppose the leave sought by the petitioner to withdraw his petition. He also averred that no agreement or terms of any kind had been made and that no undertaking had been entered into, in relation to the withdrawal of the petition.

7. When the application came up for hearing the court directed that the same be disposed by way of written submissions which the parties have complied save for the petitioner who chose to rely entirely on his supporting affidavit.

1stand 2ndRespondents 8. The 1st and 2nd respondents in their submissions raised one issue for determination and the same relates to costs. They opposed the prayer sought by the petitioner that each party should bear its own costs. They placed reliance on section 84 of the Elections Act which provides that an election court shall award the costs of and incidental to a petition and such costs should follow the cause.

9. The 1st and 2nd respondent submitted that as a result of the petition filed by the petitioner challenging the outcome of the Mvita Constituency elections for the Member of National Assembly seat, they were forced to procure services of their advocates on record to defend them. They submitted that they should not be condemned to bear their own cost even though they did not object to the withdrawal of the petition.

10. They court’s attention was drawn to the Elections Petitions Rules, 2017, rule 30 (2) (b) and the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR; Petition No 4 of 2012.

11. In conclusion, the 1st and 2nd respondent urged the court to grant leave to the petitioner to withdraw his petition and that they be awarded costs capped at Kshs 1,000,000/=.

3rd Respondent’s Submissions 12. The 3rd respondent in his submissions submitted that a withdrawal of this petition by the petitioner as he intimated would have the practical effect of terminating the present proceedings and bring the whole matter to its conclusion. That this would achieve the same practical effect and result as he had sought in his notice of motion of September 26, 2022 to have the petition terminated at this stage. Further, that it was apparent he was not opposing the petitioner’s application seeking for leave to withdraw the petition.

13. The 3rd respondent also submitted on costs and placed reliance on section 84 of the Elections Act as was also relied on by the 1st and 2nd respondent. He however left the determination of the same to the court’s absolute discretion and urged the court to grant the petitioner leave as sought.

Analysis and Determination 14. I have perused carefully the petitioner’s application, the affidavits and the submissions by all the parties herein. The only one issue arises for determination namely; whether the petitioner should be granted leave to withdraw the petition.

15. The procedure for withdrawal of an election petition is provided for under regulations 21(1) to (7), 22, 23 and 24 of Elections (Parliamentary and County Election) Petition Rules, 2017 as follows: -21(1)A petition shall not be withdrawn without the leave of the court.21(2)The election court may grant leave to withdraw a petition on such terms as to the payment of costs or as the election court may otherwise determine.21(3)An application for leave to withdraw shalla)Be informs set out in the 1st scheduleb)Be signed by the petitioner or a person authorised by the petitioner.c)State the grounds for withdrawing the petition; andd)Be lodged at the registry21(4)The parties to a petition shall each file an affidavit before leave for withdrawal of a petition is determined, addressing the grounds on which petition is intended to be withdrawn.21(5)Despite sub-rule (4), an election court may on cause being shown, dispense with affidavit of a party to the petition if it seems to the elections court or special grounds to be fit or just.21(6)Each affidavit filed under sub-rule (4) shall contain the following declaration –“To the best of the deponent’s knowledge and belief, that no agreement or terms of any kind has been made, and that no agreement has been entered into, in relation to the withdrawal of the petition”21(7)Despite sub-rule (6), where a lawful agreement shall have been made with respect to the withdrawal of the petition, the affidavit shall set out the terms of the agreement.Rule 22 provides that the petitioner shall serve each respondent with a copy of the application for withdrawal.22(2) –The petitioner shall publish in a newspaper of National circulation a notice of intention to withdraw an election petition in form 6 set out in the 1st schedule.Rule 23 – Notice for hearing of an application to withdraw an election petitions.

16. The reason for the elaborate procedure provided herein above is anchored on the nature of election petitions which are inherently suits in public interest and cannot be withdrawn at the instance of the petitioner or even at consent of parties. This position was affirmed in the case of Peter Gatirau Munya v Independent Electoral and Boundaries Commission, Meru County Returning Officer & Kiraitu Murungi[2017] eKLR, where the court held as follows;“...to the effect that election petitions are litigation sui generis and brought inherently in the public interest and therefore could not be withdrawn at the behest of the petitioner, or even with the consent of the parties.”

17. The regulation governing withdrawal is discretional and this discretion is exercised based on whether or not the party seeking leave to withdraw has complied with conditions set out in the rules. For the said reasons this court is bound to examine whether the petitioner herein has complied with the procedures laid down by the law for withdrawal of an election petition.

18. I have carefully perused the proceedings herein, and I have noted many areas of non-compliance with the laid down procedure by the petitioner. An application for leave to withdraw the petition must be made formally in a prescribed form (form 5). Also, notice of intention to withdraw must be signed by the petitioner or a person authorized by the petitioner and published in the Gazette, none was filed in this case. Further, the petitioner has to state grounds for withdrawal and has to be lodged at the registry but none was lodged in this case.

19. Regulation 22(2) cited above requires that the notice of withdrawal ought to be published in a mostly wide circulated newspaper. This is for the simple reason that the constituents of Mvita and generally the whole world should know the position of the petition as the same is of public significance. Should this court accede to the petitioner’s application, then the parties herein would be the wants in the know only which runs contrary to the intended aim of the rules.

20. In the premises, this court although the respondents are content with costs, does not find the application meeting the threshold of the required procedure of withdrawal of an election petition.

21. The application is therefore struck out with costs.

DATED SIGNED AND DELIVERED VIA VIDEO LINK THIS 15TH DAY OF DECEMBER 2022. HK CHEMITEI.JUDGE