[2017] KEHC 2647 (KLR)

REPUBLIC OF KENYA

IN THE ELECTION COURT

AT MALINDI

ELECTION PETITION CAUSE NO. 10 OF 2017

MBARAKA ISSA KOMBO ............................................................PETITIONER

VERSUS

1. I.E.B.C. ………………………………………...….….......1ST RESPONDENT

2. WAFULA CHEBUKATI…………………………..............2ND RESPONDENT

3. THE GANZE SUB-COUNTY RETURNINGOFFICER…..3RD RESPONDENT

4. TEDDY MWAMBIRE…………………………........……..4TH RESPONDENT

RULING

1. When this petition came for pre-trial directions on the 10/10/2017, Mr. Abubakhar Advocate, having filed a Notice of Advocates for the petitioner applied, pursuant to Rule 15 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, for leave to file additional affidavits by five witnesses. He also grounded his application on Article 159 of the Constitution and Section 8 of the Elections Act. The reasons for seeking to file the additional affidavits were given as follows:-

i. There was an incident of a lorry confiscated at the Constituency Tallying Centre with election materials and there is a Jubilee Party agent who wants to swear and file an affidavit.

ii. There was an incident at Lagos Bar where the agents of the 1st Respondent were found meddling with election materials. That is the third aspect of the evidence to be produced by additional affidavits.

2. Mr. Chege Advocate for the 1st and 3rd Respondent opposed the request and said that this application ought not to be allowed as the Petitioner had knowledge of the facts before the 2nd October 2017 but opted to exclude them in the petition or just sit on it. The date 2nd October 2017 was highlighted because those grievances are raised in an interlocutory application filed in court by that date. As a result Mr. Chege submitted, they have spent time to compile and file a response to the petition on the basis of the materials served upon them and to open a window for filing additional affidavits, which ought to have been filed with the petition, is to unduly consume the already constrained court’s time.

3. Mr. Chege then underscored the fact that whether or not to permit additional affidavit is a matter for judicial discretion and that the discretion would be militated against by the fact that timetable for the hearing of the petition has been set.

4. For the 4th Respondent, Mr. Owour submitted that Article 159, is not a panacea for all ills nor a blanket immunity for substantial omissions on the petitioner’s part. In this petition, Mr. Owour submitted, the petitioner is asking the court to employ the provisions of Article 159 to allow the petitioner bring his case too late in the day.

5. In his submissions a similar scenario arose in the Supreme Court decision in RAILA ODINGA –VS- IEBC & Other, (2013)eKLR and the court declined to allow the introduction of additional evidence on the consideration that it was being availed too late.

6. The counsel further substituted that the petitioner was in court on 28/9/2017 when the court gave directions that all interlocutory applications be filed by 3/10/17 and that it was the juncture the petitioner ought to have made the application for leave to avail additional evidence but it opted not to.

7. Lastly, the counsel submitted that the application does not lie in consonance with the overriding objectives of the court in which emphasize just proportionate and expeditious disposal of legal disputes including electoral disputes in particular. To him that a candidate who participated in the elections and lost now wants to file an affidavit late is akin to allowing such a candidate to ride on the back of the petitioners and in doing so derail and delay the just and expeditious determination of the petition. The counsel urged the court to disallow the application so that the dispute is not unnecessary expanded beyond its pleaded confines to aid its just resolution.

8. In closing response, Mr. Aboubakar pointed out that those who live in glass houses sought not be the first to throw stones. He said that Mr. Chege having been given the leave to file and serve his response by 9/10/2017 did not do so till 10/10/2017. On timing of the request Mr. Aboubakar submitted that the rule limits the time of such to be during partial conference and not before hence he contended there was no delay or bad faith exhibited. He added that the information sought to be added was not a matter within the knowledge of the petitioner as at the time of filing the petition and only arose thereafter.

9. On reliance in the Supreme Court decision in RAILA ODINGA –VS- IEBC & Others, 2013, the counsel submitted that the same is not applicable to the current circumstances but in any event that request has been overtaken by the same court’s decision in RAILA ODINGA –VS- IEBC & 2 Others (2017)eKLRwhere the court allowed filing of additional affidavits and declined to strike out documents allegedly filed out of time.

10. There cannot be doubt that Rule 15(h) vests upon this that is court the discretion to allow the filing of additional affidavits and evidence. As worded it is clear to this court that the sole purpose of Rule 15 is to aid in the just, appropriate and timely disposal of electoral disputes regard being had to the Constitutional and statutory limited timelines for such determination. That, to this court, is what would underscore and achieve the parameters of and dictates of fair hearing. It thus should never be lost to an election court that whether to allow or reject a request to file further affidavits and additional evidence the aim and focus must remain the realization of justice between the parties to be achieved. For that reason rule 15(b) of Election (Parliamentary and County Elections) Petition Rules 2017 cannot be read and interpreted in isolation. It must be understood on the basis of the provisions of the Elections Act and the Constitution both of which rank in priority to the rule. I have in mind the provisions of Section 76(4) of the Elections Act and Articles 87(2) and 105 of the Constitution.

11. Those provisions read:-

Section 76(4)

“Petition filed in time may for the purposes of questioning a return or an election upon an allegation of an election offence, be amended with the leave of the election court within the time within which the petition questioning the returns or the election upon that ground may be presented.

Article 87(2) provides:-

“(2) Petitions concerning an election, other than a Presidential election, shall be filed within twenty eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.”

Article 105 provides:-

“105(1) The High Court shall hear and determine any question whether:-

a. A person has been validly elected as a member of parliament; or

b. A question under clause (1) shall be heard and determined within six months of the date of lodging the petition.”

12. The two provisions are enough to show that timely disposal of electoral disputes is Constitutional dictate and when to file and determine them are parameters cast in stone or just stonewalled with no liberty on any person, even the court, to shift the set boundaries by an order for extension of time.

13. The Court of Appeal, in JaredOkelo –vs- Fredrick O. Outa & 3 Others (2013) eKLRwhile stating the importance of timely disposal of electoral dispute had this to say:-

“There is little doubt in our minds that timelines in the resolution of disputes in general, and electoral disputes in particular, is a core purpose, value and principle of the Constitution of Kenya 2010”

14. It is these provisions of the Constitution and the Legislation under pursuant thereto, being the Elections Act, that must be born in mind while interpreting and applying provisions of Rule 15(h) aforesaid.

15. Rule 15(h) provides:-

“(1) Within seven days after receipt of the last response to a petition, an election court shall schedule a pre-trial conference with the parties in which the election court shall:-

(a) …

(b) …

(h) Give directions as to the filing and serving of any further affidavit or the giving of additional evidence.

16. This rule is intended to help the court manage an electoral dispute and as framed, the court in considering whether to order filing of further affidavits or adduction of additional evidence, does so in furtherance of its overriding objectives, and on that account alone need not be prompted. It is enough that having perused the copies filed and after conferencing with the parties, and in order to obviate delay by need to file an application, the court may on own motion direct the parties or any of them to file further affidavits or additional evidence. I entertain no doubt that the discretion is wide and unfettered must only be exercised to achieve end of justice. In Raila Amolo Odinga,2013 (supra), the supreme Court set the guidelines and applicable principles as follows:-

“The other issue the Court must consider when exercising its discretion to allow a further affidavit is the nature, context and extent of the new material intended to be produced and relied upon. If it is small and limited so that the other party is able to respond to it, then the Court ought to be considerate, taking into account all aspects of the matter. However, if the evidence...is such as to make it difficult or impossible for the other party to respond effectively, the Court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence. ”

17. One talking of additional evidence must also bear in mind the pleading sought to be proved and supported by such evidence. It would be important that the desirability of the additional evidence be grounded upon the pleadings filed lest it be an endeavor towards achieving nothing in helping resolve the dispute.

18. In this petition Mr. Aboubakar in advancing the application informed the court that there are the three scenarios that have informed his advice to his client to seek to file further affidavits and additional evidence. I have highlighted the three scenarios earlier on in this ruling. In considering the desirability of such additional one must look at the reigning pleadings by the Petition to try and judge how much probative material would be added. In that regard it is important to discern whether the stated two or three scenarios are captures by the petition so that deems it to be necessary and just not to block a party from availing all the evidence towards proving his case.

19. My perusal of the petition is that it is indeed what one would call an omnibus or indeed nebulous pleading making indeed very general accusations with very little particulars. I read the petition to attack the conduct of the elections on five broad grounds, as follows:-

i. Violation of the principles of free and fair election and electoral process,

ii. Relay and transmission of results from polling station to the constituency tallying centre was not as by law provided

iii. Violation or departure from the dictates of Article 81, as read with sections 39, 44, and 44A of the elections Act as well as section 25 of the IEBC Act.

iv. Failure to employ a system that was simple, accurate, secure, transparent, veritable and accountable and that the votes cast were never dealt with in the manner dictated by Article 86 of the Constitution.

v. Substantive non-compliance with the law and the accommodation of irregularities and improprieties.

20. The question that the court must ask and answer to assist in the determination of the desirability of the additional evidence and further affidavit is how the intended evidence to be derived from the three incidences would be aligned or alignable to the pleadings in the petition.

21. My view and opinions is that the question of a lorry being seen at the constituency tallying Centre while loaded with election materials and that some election officials were found at Lagos Bar while meddling with election materials are outright and distinct grounds that ought to have been captures as such pursuant to provisions of Rule 8(1) e. I read the petition not to have pleaded those two grounds and hold the view that no useful purpose would be served by leave being granted.

22. How about the evidence by the candidate who participated in the election and lost? Mr. Aboubakar was content to say that as a person who participated in the election he needs to file an affidavit. No effort was made to disclose to court what the said person intends to say so that the court weighs its contribution to the dispute resolution. With such dearth of candour, it is difficult for a court of law to exercise its discretion in favour of such an applicant.

23. The other consideration and which closely tied to the relevance of the intended evidence to the petition is the question whether that evidence was within the knowledge of the petitioner at the time the petition was filed so that it ought to have been availed and prescribed to court at that time. In this regard, I entertain no doubt that the petitioner must have been aware of all the candidates participating at the election. In fact at one of the deponents of the affidavits in support of the petition SAMSON KAHAZO CHIENGO had this to say about the candidate.

“ That our area chief Mr. Julius Mwambegu used to openly campaign for ODM Party Candidates until he was warned by our area Member of National Assembly Mr. Peter Safari Shehe…”

24. That averment alone is enough to indicate to this court who the said candidate, peter safari shehe, was and what he observed during the election period was known to the petitioner and if his evidence was deemed genuine to the case, it ought to have been included at the earliest possible opportunity. But then, if I heard Mr. Aboubakar right, he did not say that the petitioner has sought and requested the proposed witness to give evidence. No. Mr. Aboubakar merely said there was a candidate at the election of Ganze MP who wants to file an affidavit.”

25. Much as an election petition may be seen to be a dispute of public nature, where one files a petition in own right he must be granted the liberty to choose his witnesses and any other person who seek to participate in the petition may only participate as a witness of the petitioner or by making an application and being allowed to be joined either as a co-petitioner or a Respondent. It is not open for anybody to merely walk into the petition and say I want to file an affidavit and I ought to file one.

26. In any event, one SHEHE PETER SAFARI has sworn an affidavit in support of an application for scrutiny. If the application succeeds, the complaint by that person will be available and receivable at the scrutiny.

27. Now that I have taken the view that the evidence sought to be led on the two incidence of the lorry with election materials and the arrest at Logos Bar are not alignable to the reigning petition, why would it be undesirable to just let the same be filed for whatever it is worth?

28. I subscribe to the learning that the purpose of pleadings is to warn the opposite party of what to answer to at trial. That to me is the foundation of the right to a fair hearing. That very noble and otherwise nonnegotiable right when put in the lens of the Constitutional and legal timelines set for filing and determination of electoral dispute must in all events be the guiding light for a court in exercise of its discretion whether to allow the admission of further affidavit and additional evidence.

29. There is an obvious connection and justification for such standpoint in that to allow a party to adduce evidence that is not in consonance with the pleadings filed will not only waste courts time but also ambush the opposite party by ingeniously departing from the petition or just mending it otherwise than by law provided. That portends a further and very undesirable and even illegal happening that one would be raising a point that was not raised within the Constitutional timelines under Article 87 of the constitution and section 76(4) of the Election Act

This court is hesitant to venture and seek to sail on such dangerous waters. It would be neither just nor legal

30. The upshot is that I decline to grant leave to file further affidavits and adduce evidence as urged by the petitioner. The application is therefore disallowed and dismissed but costs ordered to be in the cause.

It is so ordered.

Dated and delivered at Malindi this 11th day of October, 2017

P. J. O. Otieno

JUDGE

Court Clerk: Kayo

Mr. Aboubakar for the petitioner

Mr. Chege for the 1st and 3rd Respondents

Mr. Owour for the 4th Respondent

Court: Ruling delivered in open court.