[2017] KEHC 1701 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ELECTION PETITION NO. 7 OF 2017

IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 20, 22, 23, 47 AND 73 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF: CHAPTER SEVEN AS READ TOGETHER WITH CHAPTER SIX OF THE CONSTITUTION OF KENYA, 2010 (REPRESENTATION OF THE PEOPLE)

AND

IN THE MATTER OF:CONTRAVENTION OF ARTICLES 1, 2, 10, 81, 83 AND 86 OF THE CONSTITUTION BY THE RESPONDENTS

AND

IN THE MATTER OF:THE ELECTIONS ACT CAP 7, ELECTIONS (TECHNOLOGY) REGULATIONS, 2017 AND THE ELECTION OFFENCES ACT NO. 37 OF 2016

AND

IN THE MATTER OF:THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT, 2012

AND

IN THE MATER OF: THE LEADERSHIP AND INTEGRITY ACT, 2012

BETWEEN

MOHAMED MAHAMUD ALI........................……………..PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

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

AISHA ABUBAKAR, CHANGAMWE CONSTITUENCY

RETURNING OFFICER …………….....………….. 2ND RESPONDENT

OMAR MWINYI SHIMBWA.........………………....3RD RESPONDENT

RULING

1. The 1st and 2nd respondents being the Independent Electoral and Boundaries Commission and Aisha Abubakar, the Changamwe Constituency Returning Officer, respectively, have moved this court under certificate of urgency for the following orders:-

(i) Spent;

(ii) That before pre-trial conference directions are issued, leave be granted to have the Presiding Officers and Poll Clerks affidavits annexed to the Returning Officer’s supplementary affidavit admitted as part of the response by the 1st and 2nd respondents in line with Election Petition Rules;

(iii) That the 1st and 2nd respondents' witnesses affidavits referred to and annexed to the supplementary affidavit of the Returning Officer volume 1, pages 388 – 576, volume 2, pages 1-566 and volume 3, pages 1-549 filed in court on 3rd October, 2017 be deemed to have been filed within time; and

(iv) That costs of the application be in the cause.

2. The application is predicated on the grounds in support of it and the provisions of Article 159(2) (d) of the Constitution of Kenya, 2010, Rules 4, 5, 7, 9, 12(6), 8 and 19 of the Elections (Parliamentary and County) Petition Rules, 2017 (Elections P&C Petition Rules, 2017). It is supported by the affidavit of Justus M. Munyithya sworn on 3rd October, 2017. The said Learned Counsel for the applicants submitted that upon receipt of the supplementary affidavit by the petitioner it occurred to him that there was an omission in the filing of affidavits by the Presiding Officers and Polling Clerks in 41 polling stations mentioned by the petitioner. He argued that under rule 11 of the Elections P&C Petition Rules, 2017 as read with rule 12(6) of the said rules, this court has jurisdiction to extend time within which affidavits can be filed. Counsel further submitted that under rule 19(1) of the Elections P&C Petition Rules, 2017 this court has powers to grant leave for the filing of affidavits and further affidavits outside the timelines provided. He added that rule 15 of the said rules also gives this court the powers to extend time.

3. Counsel stated that it was his duty to give the court all the materials that will enhance the purpose of the rules and that he exercised due diligence to ensure that all required documents are availed to the court. He indicated that the affidavits in issue have been availed in 3 volumes. Mr. Munyithya explained that the delay was occasioned by the time taken to interview 41 Polling Clerks and Presiding Officers within 7 days and compiling the polling station diaries which was not an easy task. He placed the blame totally on their law firm for failing to complete the interviews on time, thus the late filing.

4. In winding up his submissions, Counsel stated that the petitioner in his petition has requested for the polling station diaries which have been availed. He submitted that under the provisions of Article 159(2)(d) of the Constitution, justice must be done without undue regard to technicalities. He urged the court to allow the application and for costs to be in the cause.

5. In opposing the application, Mr. Gikandi stated that he filed a replying affidavit on 4th October, 2017. He indicated that the 1st and 2nd respondents were served on 12th September, 2017 with the petition and by dint of rule 10 of the Elections P&C Petition Rules, 2017, the 1st and 2nd respondents had a period of 14 days to file their opposition to the petition. He submitted that the response should be in the manner set out in Form 4 of the First schedule of the said rules. He relied on the provisions of rule 12(6) and 12(7) of the Elections P&C petition Rules, 2017 which state that each person who the respondent wishes to call shall swear an affidavit. In his view, petitions are supposed to be heard strictly in compliance with the rules to avoid petitions outliving the life of parliament. He argued that the 1st and 2nd respondents should be bound by the responses they filed.

6. Mr. Gikandi further submitted that being overwhelmed by work is not a good excuse for lack of compliance. He added that the petitioner has applied for scrutiny of the voting materials and that under rule 16 of the Elections P&C Petition Rules, 2017, the court has powers to order for the polling station diaries for Changamwe Constituency to be brought before the court for scrutiny, which means that they will from part of the evidence to be considered. Counsel argued that it might not be prudent for the court to allow 41 extra persons to come and testify to support the 1st and 2nd respondents' case. In his view, if their evidence will be revolving around the polling station diaries, then the witnesses need not come to give evidence.

7. Counsel contended that rule 19 of Elections P&C Petition Rules, 2017 requires an applicant to make a strong case equal to the principles that apply in setting aside an exparte judgment, by stating a good reason and explanation on why default has occurred and that the setting aside is for a good purpose. He submitted that in this case no good explanation has been given for not filing of affidavits on time. Although Mr. Gikandi agreed that the provisions of Article 159(2)(d) of the Constitution were good provisions for the 1st and 2nd respondents to rely on, in his opinion, no prejudice will be suffered by them if the present application is dismissed as the issue of scrutiny will settle all the matters that Mr. Munyithya has brought out in his application.

8. In response to the foregoing, Counsel for the 1st and 2nd respondents contended that they complied with the provisions of rule 11 of the Elections P&C Petition Rules, 2017 by the respondents filing a response within 7 days of receipt of the petition. He submitted that rule 12(8) of the said rules provides that witnesses can only be heard when they have filed their affidavits. He urged this court to exercise its discretion in allowing the additional affidavits to be filed out of time. He stated that the evidence of a Presiding Officer cannot be left out and no sufficient reasons have been given for this court not to grant the orders sought. Counsel was of the view that the rules for setting aside exparte judgments do not apply in this application.

9. Mr. Mohammed, Learned Counsel for the 3rd respondent did not oppose the application. He submitted that under Rule 15(h) of the Elections P&C Petition Rules, 2017, this court can give directions as to the filing of further affidavits or the giving of additional evidence. Opposing the present application would therefore defeat the overriding objectives.

ANALYSIS AND DETERMINATION

The issue for determination is if this court should exercise its discretion to admit affidavits filed by witnesses for the 1st and 2nd respondents outside the required timelines.

10. The petition herein was filed on 6th September, 2017. The law firm of Kioko, Munyithya, Ngugi & Co. Advocates filed a notice of appointment of Advocates and notice of address for service for the 1st and 2nd respondents on 12th September, 2017. They filed a response to the petition on 15th September, 2017 as well as a joint replying affidavit for the 1st and 2nd respondents. They also filed a list of authorities on the said date. Those documents were filed within the timelines set for so doing.

11. Extension of time can be done under the provisions of Rule 15(1)(h) of the Elections P&C petition rules, 2017 which give courts discretion to allow the filing of further affidavits or admissions of new or additional evidence. Rule 19(1) of the said rules also makes provisions for extension of and reduction of time in the following words:-

“where any act or omission is to be done within such time as may be prescribed in these Rules or ordered by an election court, the election court may, for the purposes of ensuring that injustice is not done to any party, extend or limit the time within which the act or omission shall be done with such conditions as may be necessary even where the period prescribed or ordered by the court have expired.”

12. There is however a rider however to the provisions of rule 19 in that they do not apply to extension of timelines for filing, hearing and determination of election petitions, see rule 19(2) of the Elections P&C Petition Rules, 2017.

13. In the case of Raila Odinga, Moses Kiarie Kuria & Others vs. Independent Electoral and Boundaries Commission, Uhuru Kenyatta & Others,[2013)] eKLR, one of the petitioners in that case, Hon. Raila Odinga, sought for inclusion of additional evidence which was contained in a 900 page affidavit. The Supreme court stated thus:

“The parties have a duty to ensure they comply with their respective timelines, and the court must adhere to its own. There must be a fair level playing field so that no party or the court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party by the court, as a result of omissions, or inadvertences which were foreseeable or could have been avoided. 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 or 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 new material is so substantial involving not only a further affidavit but massive additional evidence, so 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.”

14. In the above petition the Supreme Court had a timeline of 14 days within which to determine the presidential election petition. In this instance this court has about four (4) months left to hear and determine the present petition. This court is therefore working on limited timelines and has to manage its time efficiently and effectively. The 1st and 2nd respondents aim of filing the additional affidavits is to respond to the issues raised in the petition, touching on the events of 8th August, 2017 as they unfolded in the 41 polling stations in issue. I am in agreement with Mr. Gikandi that being overwhelmed with work is not a good excuse for failure to comply with set timelines for filing responses. Counsel for the 1st and 2nd respondents could have hired extra hands to assist in the drafting of the additional affidavits. This court however takes cognizance of the fact that if it fails to allow the additional affidavits to be deemed as being properly on record, it will be doing injustice to the 1st and 2nd respondents and slamming the door of justice right on their faces, so to say.

15. Rule 4(1) of the Elections P&C petition rules, 2017 provides that the objective of the Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions. Sub-rule 2 thereof provides that an election court shall, in the exercise of its powers under the Constitution and the Act, or in the interpretation of any of the provisions in the Rules, seek to give effect to the objective specified in sub-rule 1. I have perused the petition on record and it adversely implicates Polling Clerks and Presiding Officers assigned to various polling stations in Changamwe constituency in the elections conducted on 8th August, 2017; of electoral malpractices for which the petitioner seeks various orders. This court pays heed to the provisions of Article 159(2)(d) of the Constitution of Kenya which provides that justice shall be administered without undue regard to technicalities. In a case of this magnitude which seeks among other orders, a declaration that the 3rd respondent was not validly elected as the Member of the National Assembly for Changamwe Constituency in the elections conducted on 8th August, 2017, substantive justice should not be left to bleed at the altar of technicalities. This court also bears in mind the provisions of Rule 5(1) of the Election P&C Petition Rules, 2017 which stipulates that the effect of any failure to comply with the Rules shall be determined at the Court's discretion in accordance with the provisions of Article 159(2)(d) of the Constitution.

16. I fail to see how the principles that apply in setting aside expartejudgments can be linked to an application of this nature as submitted by Mr. Gikandi. This court is yet to consider the application filed by the petitioners for scrutiny and recount of the votes cast on 8th August, 2017 in the 41 polling stations in issue. This therefore gives credence to the 1st and 2nd respondents application which will enable their witnesses to adduce evidence to support their position, thereby enhancing the objective under rule 4(1) of the Elections P&C Rules, 2017. The Counsel for the petitioner has not shown this court how the additional affidavits will prejudice the petitioner’s case. The 3rd respondent did not oppose the application and rightly so.

17. The end result is that I exercise my discretion in allowing the application dated 3rd October, 2017. The additional affidavits filed on the said date are deemed to be properly on record. In view of the large number of affidavits filed, the court will during the pre-trial conference bear in mind the need for managing the manner in which the evidence of the said witnesses will be adduced in court. The petitioner and the 3rd respondent are at liberty to file further supplementary affidavits in response to the additional affidavits filed by the 2nd and 3rd respondents, within 3 days from today. Costs in the cause.

DELIVERED, DATED and SIGNED at MOMBASA on this 9th day of October, 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

Mr. Gikandi for the petitioner

Mrs. Maithya holding brief for Mr. Justus Munyithya for the 1st and 2nd respondents

Mr. Said for the 3rd respondent

Mr. Oliver Musundi - Court Assistant