[2017] KEHC 2640 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

ELECTION PETITION NO. 2 OF 2017

MICHAEL GICHURU..............................................................PETITIONER

VERSUS

HON. RIGATHI GACHAGUA.......................................1ST RESPONDENT

KAHURA KANUA JOHN…………………....………2ND RESPONDENT

INDEPENDENT ELECTORAL

& BOUNDARIES COMMISSION..............................3RD RESPONDENT

RULING

By a motion dated 30th October, 2017, the 1st respondent asked this court to strike out the petitioner’s petition amended on 24th October, 2017 and filed in court on 30th October, 2017. The motion is made under sections 79(a), and 80(3) of the Elections Act, 2011, Rule 12(12) and (14) of the Elections (Parliamentary & County) Petitions Rules, 2017. It is supported by an affidavit sworn by the 1st respondent on 31st October, 2017.

The motion was filed in court on 31st October, 2017 and heard on 1st November, 2017. On this particular date, the petition had been scheduled for mention to confirm whether the parties had complied with the directions issued on 24th October, 2017 in preparation for its hearing. The court proceeded to hear the motion despite the fact that it had been served on the petitioner’s counsel on the same date the petition was scheduled for mention; the court opted for this course because counsel intimated that in spite of the short notice he was ready to proceed with the application, and more importantly, it was necessary that the motion be disposed of as soon as possible since the time within which this petition is scheduled to be determined is fast running out.

The 1st respondent’s primary bone of contention against the petitioner’s amended petition is that certain amendments in the petition are beyond those for which leave was granted. Secondly, the depositions in the affidavit in support of the amended petition are consistent with those averments that were struck out from the original petition. For these reasons, counsel for the 1st respondent has urged that the entire petition should be struck out.

The background against which the applicant’s motion is made is this: on 24th October, 2017, I delivered a ruling according to which, among other things, some paragraphs in the petition were struck out. By the same ruling, the petitioner was allowed to amend his petition in certain specified respects. It is not necessary to reproduce the entire ruling here but the relevant orders were listed as 2 and 3(g) and were couched as follows:

“

2. The 1st respondent’s motion dated 26th September, 2017 for striking out the petition is dismissed; however, paragraphs 15, 19, 27, 56 and 57 of the Petition are hereby struck out. Paragraphs 2 and 5 of the affidavit of Duncan Mugo are struck out. The costs will abide the outcome of the petition.

3. (g) Prayer 9 is allowed except that the amendments will be limited in the following respects:

i. Correction of the names of the polling stations which have wrongly been spelt;

ii. Posting of the correct election results for election of the Member of National Assembly for Mathira as declared in Form 35B;

iii. Stating the date of the declaration of the results.

iv. Filing further affidavits for correction of errors as in (i), (ii) and (iii) above.”

Counsel for the 1st respondent has argued that certain averments in the petition and depositions in the affidavit in its support ought not to have been retained in the amended petition and the supporting affidavit that were filed subsequent to the order of 24th October, 2017 in so far as those averments and depositions depict the petitioner as having had agents in some polling stations. According to him, these averments and depositions imply that the petitioner was a candidate for the parliamentary seat for Mathira constituency yet he was not.

The impugned averment in the amended petition is found in paragraph 55, of the amended petition; it is phrased as follows:

55. THAT In the following polling stations the agents of the Petitioner were not allowed into the polling stations by the 3rd Respondent’s agents until way after voting process had commenced and the agents were therefore not able to participate in the opening of the ballot boxes to ensure the boxes were not stuffed beforehand: Karatina Open Air Market polling station; Karatina Stadium polling station; Elimu polling station; Kiangogu secondary school; Guguru primary school; Kamanyunyu polling station.

Paragraphs 15, 17, 19, 27 and 54 of the affidavit in support of the amended petition are also alleged to imply that the petitioner was a contestant, a fact that the petitioner very well knows to be untrue.

These paragraphs read as follows:

“15. That reports from many of my agents for the independent candidate Phyllis Christabel Wambura Maranga observed a uniform nature of presiding officers inquiring loudly from the voters as to who they wanted to cast their vote while crowds of people hung around polling stations which is a contravention of Section 7 of the Elections Offences Act.

19. That when the said agents complained on the irregular assisted voting, the presiding officers ejected them from their polling stations of assignment. The said ejection was unfair and without legal justification.

27. That at Unjiru primary school polling station in Form 35A the 1st respondent has 262 votes while the petitioner has 105 votes while in Form 35 B whereas the 1st respondent’s votes are increased by 100 the petitioner’s votes remain constant, the portal results indicate that the 1st respondent has about 350 votes more that (sic) the votes in Form 35B.

54. That the 1st Respondent and/or his agents and/or persons on his behalf used violence, intimidation against the Petitioner’s agents and the integrity of the process was undermined therefore affecting the outcome of the election.”

Counsel also contended that while paragraph 36 of the affidavit in support of the amended petition refers to security features in respect of the ballot papers the petition refers to security features in respect of the ballot boxes. The two, according to him, are irreconcilable.

Counsel complained that the exhibits filed alongside the supporting affidavit are wrongly on record and that the leave granted to the petitioner was to file affidavits only, without exhibits.

Finally, counsel urged that the amended petition ought to have been filed within 4 days but the petitioner filed it four days late.

Mr Munene for the 2nd and 3rd respondents supported the application and associated himself with the submissions by counsel for the 1st respondent.

Mr Wakwaya for the petitioner opposed the motion but conceded that paragraphs 17, 19, 27 and 54 of the affidavit in support of the amended petition could be struck out since their content was similar in every respect to those averments in the original petition that were struck out. In the face of this concession, it would be unnecessary to engage in any further discussion on whether these paragraphs should or should not be retained in the affidavit in support of the amended petition. They are, accordingly, struck out.

As far as paragraph 55 of the petition is concerned, counsel urged that is not one of the paragraphs that were struck out and therefore there is nothing wrong in retaining it in the amended petition or the affidavit in support thereof.

On paragraph 36 of the amended petition, counsel urged there need not be any confusion as to whether the petitioner is referring to the ballot boxes or ballot papers because the heading to that paragraph is clear that it is the ballot papers and not the ballot boxes that are in issue.

Counsel has also denied that the petitioner has introduced any fresh evidence in the affidavit in support of the amended petition. According to him the annextures the 1st respondent is complaining about are the same annextures that were initially exhibited to the affidavit in support of the petition.

On the question of the timing of the filing of the amended petition, counsel urged that the pleading was filed in time because the last day for its filing fell on a Saturday when the court was not working and the next available date was Monday the 30th October, 2017. In this regard counsel relied on section 57 of the Interpretation and General Provisions Act, cap. 2 according to which a day such as Saturday is omitted from computation of time within which an act ought to be done since it is, in these circumstances, considered not to be a working day.

The applicant’s motion is, by and large, seeking to strike out the petitioner’s amended petition on the same grounds he sought to have the petition itself struck out which is that, in certain paragraphs in the amended petition and the affidavit in support thereof, the petitioner has misrepresented himself as a candidate for the Mathira parliamentary seat during the 8th August, 2017 general elections; as a matter of fact he submitted that he was relying on the same decisions which he cited when he prosecuted the first application to strike out the petition.

If I was to take the path suggested by the applicant, there would be no reason why I did not strike out the entire petition the very first time it was brought to my attention that certain averments in the petitioner’s petition were found wanting in this regard. In other words, there is no reason for me to depart from my previous position and strike out the amended petition because the impugned averments have been retained in the amended petition. The farthest I can go, assuming the applicant’s contentions are merited, is to strike out those paragraphs from the amended petition.

On the specific question whether the petitioner has retained the averments that were struck out in the amended petition, I have to go back to the striking order for an answer; that order was couched in the following terms:

“The 1st respondent’s motion dated 26th September, 2017 for striking out the petition is dismissed; however, paragraphs 15, 19, 27, 56 and 57 of the Petition are hereby struck out. Paragraphs 2 and 5 of the affidavit of Duncan Mugo are struck out. The costs will abide the outcome of the petition.”

It is apparent that paragraph 55 which the petitioner is accused of having retained in the amended petition was not amongst the paragraphs that were struck out. To this extent, the applicant’s motion is based on a misapprehension of facts.

It could be that, in the applicant’s opinion, paragraph 55 of the petition ought to have been struck out as well. If that is the case, then the petitioner cannot be vilified for inclusion of that particular paragraph in the amended petition for the simple reason that it is the court’s order, and not the applicant’s opinion, that counts. As long as the petitioner can demonstrate that he complied with the court order and omitted from his amended petition certain averments as contained in specific paragraphs of the petition and which paragraphs were expressly singled out, he cannot be condemned for retaining this particular paragraph in the amended petition.

I would suppose that if the applicant is, in some way, aggrieved that 55 was not struck out in the ruling of 24th October, 2017 then his redress does not lie in the striking out of the petitioner’s amended petition; instead, he ought to have appealed against the ruling or sought for its review, assuming there are any grounds for either of these alternatives.

The offending words in paragraph 55 are “agents for the petitioner”. The context in which the phrase “my agents” was used in the paragraphs I struck out from the original petition appealed to me to misrepresent the petitioner as one of the candidates for the parliamentary seat. There are other contexts in which this phrase has been adopted but which does not necessarily imply that the deponent was a candidate; for instance, in the affidavit of Kimu Nyamu, who is one of the petitioner’s witnesses, the deponent swore that he was the chief agent of one of the contestants whom the petitioner was also represented but that he was also in charge of other 190 agents whom he has referred to as “his agents”. To quote him this is how he has put his depositions:

I, KIMU NYAMU, a resident of Mathira and of Post Office Box Number within the Republic of Kenya do hereby state and make oath as follows:

1. THAT I am a registered voter in Mathira Constituency.

2. THAT I was the Chief Agent of Maranga Phyllis ChristabelWambura who vied as an independent candidate for the position of Member of National Assembly for Mathira Constituency.

3. THAT in my capacity above I wasin charge of 190 agents and I was stationed at the constituency tallying centre in Karatina Girls High School.

4. THAT my agents reported to me that they were being harassed by IEBC officials and were being denied access to the polling stations.

It is clear here that though the deponent has referred to certain agents as “his agents” he was clearly not referring to them as such because he was a candidate but because of his role as the Chief agent. The point is, the context in which this phrase has been used matters and where it is not prima facie that the petitioner has adopted it to misrepresent himself as the petitioner, the appropriate time to determine whether this was indeed his intention is after he has been cross-examined on his depositions or averments in that regard. In my view paragraph 55 of the amended petition should be viewed in that light.

As far as the affidavit in support of the amended petition is concerned, I have already indicated that paragraphs 15, 17, 19, 27 and 54 will be struck out as counsel for the petitioner does not contest their omission from the petitioner’s affidavit.

The 1st petitioner has argued that the introduction of the word “ballot papers” in the affidavit supporting the amended petition amounts to introduction of new evidence and thereby prejudicing the 1st respondent. The origin of the 1st respondent’s concern is paragraph 36 in the affidavit in support of the petition and paragraph 36 of the petition itself; they both read as follows:

“(a) Use of fake ballot papers/Forms

The Petitioner avers that the ballot boxes used were not authentic and did not have the requisite security features as had been directed by the 3rd Respondent.”

The heading to the paragraph was clear that the petitioner was making reference to ballot papers and forms; however, the paragraph that followed talked of “ballot boxes” rather than “ballot papers”. The amended petition and the affidavit in support thereof are now consistent with heading and talk of “ballot papers”.

Although this amendment is not one of those amendments for which leave had been granted, I am unable to see how this amendment has prejudiced any of the respondents. I am also not able to figure out how it can be considered as fresh evidence when it is apparent from the heading of the relevant paragraph that the bone of contention is the “use of fake ballot papers/forms”. More importantly, I doubt the respondents could possibly have been in doubt that the petitioner was referring to the ballot boxes and not the ballot papers. And this is clear from the 2nd and 3rd respondents’ response to the petition dated and filed in court on 21st September, 2017; in paragraph 34 of that response, the respondents pleaded as follows:

“34. In response to paragraphs 36, 37 and 38 of the petition, all statutory forms used in the election were authentic and incorporated all the security features necessary. It is thus not true that there were fake ballot papers and boxes used that did not have security features as alleged by the petitioner and none have been exhibited by the petitioner.”

Still on the affidavit in support of the amended petition, the 1st respondent has complained that the petitioner has annexed exhibits to the affidavit yet he was not granted him leave to do so. The outright answer to this contention is that once one has been granted leave to file any sort of affidavit, he does not require a separate leave to file exhibits to which that affidavit may make reference. The exhibits are deemed to be part of the affidavit as long as the deponent has made reference to them.

All that the petitioner ought to have been concerned about was that whatever exhibits he referred to in the affidavit in support of the amended petition did not comprise fresh evidence. It is apparent from the petitioner’s affidavit that he was cautious of this fact since all the exhibits on his affidavit are the same ones that he referred to in the initial affidavit in support of his petition.

The final question is that the amended petition was filed outside time. The Petitioner was given four days to file and serve the amended petition. The 1st respondent’s counsel urged that having been granted the requisite leave on 24th October, 2017, the last date to file the petition was 28th October, 2017 yet it was not until the 30th October, 2017 that the petitioner filed his petition.

The answer to the 1st respondent’s concern is that the last day to file the amended petition fell on a Saturday by which time the court registry was closed. The next earliest day on which the amended petition could possibly be filed was the Monday of 30th October, 2017. The filing of the amended petition on this particular date was no doubt consistent with section 57 of the Interpretation and General Provisions Act, Cap. 2 on computation of time; its states:

In computing time for the purposes of a written law, unless the contrary intention appears—

(a) …

(b) if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day;

(c) where an act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day;

(d) …

For the foregoing reasons, the 1st respondent’s motion dated 30th October, 2017 is disallowed; however, paragraphs 15, 17, 19, 27 and 54 of the affidavit in support of the amended petition are hereby struck out. The costs of the motion will abide the outcome of the petition.

Signed, dated and delivered in open court this 6th November, 2017

Ngaah Jairus

JUDGE