[2017] KEHC 2416 (KLR)

M’limunyi v Independent Electoral and Boundaries Commission & 2 others (Election Petition 4 of 2017) [2017] KEHC 2416 (KLR) (14 November 2017) (Ruling)

Bariu M’limunyi v Independent Electoral and Boundaries Commission, Returning Officer Igembe Central & Irino Cyprian Kubai [2017] eKLR

Neutral citation: [2017] KEHC 2416 (KLR)

Republic of Kenya

In the High Court at Meru

Election Petition 4 of 2017

F Gikonyo, J

November 14, 2017

Between

Bariu M’limunyi

Petitioner

and

The Independent Electoral and Boundaries Commission

1st Respondent

Returning Officer Igembe Central

2nd Respondent

Irino Cyprian Kubai

3rd Respondent

Ruling

[1]This petition was filed on 6th September, 2017. But, it was never served. On 11th September 2017, the Petitioner filed an application to withdraw the Petition. When the application first came up for hearing on 13thSeptember 2017, the court gave the following directions:-(a)This matter to await gazettement of election Court to deal with it.(b)Meanwhile, the application to withdraw petition be served on respondents.(c)Mention on 5. 10. 17.

[2]Subsequently, this court was gazetted as the election court for purposes of this election Petition. During pre-trial conference on 2nd October 2017, the court directed in the presence of Mrs Njiru for the 1st and 2nd Respondents, and Mr.Ogoti for Mombo for the Petitioner, and in the absence of the 3rd Respondent that:-‘’Notice of intention to withdraw Petition be published in one newspaper of nation-wide circulation within 7 days. No affidavits are required of the defendants. Hearing of application for withdrawal shall be on 30. 10. 17. DR to issue relevant Notice’’.

[3]The orders for publication of notice of intention to withdraw petition was not complied with until 10th November 2017; it was published on the Standard Newspaper issue for 10th November 2017. The court, however, accepted the apologies given by the legal counsel for the Petitioner and received the notice. A copy is in the court file.

[4]I now embark to consider the application. The reasons given on the face of the application are that:-(a)There is no sufficient evidence to seek nullification of the election of the 3rd Respondent(b)The Petitioner has not served the Petition and he is aware that dismissal of his petition on that ground would require him to pay costs thereof.(c)He wishes to withdraw the Petition in the interest of justice and to save court’s precious time.(d)There is no agreement or terms of any kind made and no understanding reached in relation to the withdrawal.

[5]There was no any opposition to this application. I note several legal issues have emerged which are of importance to this decision. First of all, the Petition has not been served in accordance with rule 10 ofthe Elections (Parliamentary and County Elections) Petitions Rules, 2017. In fact, it was never served. It is therefore a candidate for dismissal in any event. Consider the following. According to section 76(1) (a) of the Elections Act, a petition must be served within 15 days of presentation of the petition. Thus, service of an election petition is a fundamental step in the process of resolution of electoral disputes and is a matter of justice under the Constitution and the Electoral laws.Needless to state that service of pleadings brings to the attention of the other party the kind of case they are faced with, thus, giving the party an opportunity to make defence. Service of pleadings, is therefore not a technicality under or curable by article 159(2) (d) of the Constitution. See the case of Rozaah Akinyi Buyu Vs. Independent Electoral & Boundaries Commission & 2 Others, Civil Appeal (kisumu) No. 40 Of 2013. Non-service of an election petition as commanded in law and within the prescribed time, or at all, is a fatal mistake.The dictum of the Court of Appeal in Rozaah Akinyi Buyu case (ibid)gives illustration and point to this mandatory requirement of service of the Petitionin the electoral process and resolution of disputes arising therefrom. In sum, a petition that has not been served at all is a perfect candidate for dismissal by court.

[6]Secondly, no deposit of security for the payment of costs as required in law was made. Again, going by the provisions of section 78 of the Elections Act and rule 13 of the Election Rules, this petition is doomed. In essence, where a petitioner does not deposit security as required by section 78 of the Elections Act, no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent’s costs. See section 78 of the Elections Act as reproduced in ex tenso below:- 78. Security for costs(1)A petitioner shall deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petition under this Part.(2)A person who presents a petition to challenge an election shall deposit—(a)one million shillings, in the case of a petition against a presidential candidate;b)five hundred thousand shillings, in the case of a petition against a member of Parliament or a county governor; or(c)one hundred thousand shillings, in the case of a petition against a member of a county assembly.(3)Where a petitioner does not deposit security as required by this section, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent’s costs.(4)The costs of hearing and deciding an application under subsection (3) shall be paid as ordered by the election court, or if no order is made, shall form part of the general costs of the petition.(5)An election court that releases the security for costs deposited under this section shall release the security after hearing all the parties before the release of the security.

[7]In light of the above, this court did not even see the need for Respondents to file affidavits under rule 21(4) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. There was good cause to dispense with that requirement as this petition suffered fatal deficiencies in law that needed no exposition by the Respondents. In my view, such petition is incompetent or technically dead only fit for the grave; it cannot even be taken over by another interested person.Now therefore, as there is nothing to show that any improper agreement or terms or undertaking of any kind was entered into in relation to the withdrawal, I accordingly permit the withdrawal of this petition in accordance with the power of the court in rule 21 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. As a consequence, this Petition is marked as withdrawn with no orders as to costs as none was asked for by any of the Respondents. It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 14TH DAY OF NOVEMBER 2017. ...........F. GIKONYOJUDGEIn the presence of:Mr. Mombo advocate for PetitionerPetitioner – presentNon appearance for Respondents