[2022] KEMC 12 (KLR)

Mohamed v Hassan & 5 others (Election Petition E003 of 2022) [2022] KEMC 12 (KLR) (24 November 2022) (Ruling)

Neutral citation: [2022] KEMC 12 (KLR)

Republic of Kenya

In the Garissa Law Courts

Election Petition E003 of 2022

HM Nyaberi, CM

November 24, 2022

Between

Sahlan Salat Mohamed

Petitioner

and

Zamzam Mohamed Hassan

1st Respondent

Chairman National Agenda Party of Kenya

2nd Respondent

National Agenda Party of Kenya

3rd Respondent

Independent Electoral & Boundaries Commission

4th Respondent

The Clerk Garissa County Assembly

5th Respondent

The Speaker Garissa County Assembly

6th Respondent

Ruling

1Pursuant to further directions issued on November 10, 2022, this Petition was slated for hearing today November 24, 2022. When the Petition was called out in readiness for hearing, the court was informed by the learned counsel Mr Bosire Advocate for the 1st Respondent that the counsel for the Petitioner is absent but was in the process of filing an application to withdraw the petition. The said sentiments were echoed by the learned counsel Mr Enonda Advocate for the 2nd and 3rd Respondent. The Court set aside the file to 11. 00 am to confirm the filing of the intended application.

2When the Court resumed shortly after 11. 00 am, the learned counsel Mr Nyipolo holding brief for Mr Taliti informed the Court that the application had been filed and with the leave of the Court, the petition may be withdrawn. The learned counsel Mr Bosire for the 1st Respondent submit that they were not opposing the application neither they intend to file any affidavit to the application nor they will be claiming costs. The same position was taken by Mr Enonda Advocate for the 2nd and 3rd Respondent.

3The Notice of Motion is brought under Rule 21 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 and Article 159 (2) (c) of the Constitution of Kenya. The Petitioner is seeking an order that: -1. The Honourable Court be pleased to grant leave to the Petitioner/Applicant to wholly withdraw the main petition with no orders as to costs2. The petition be marked as withdrawn wholly with no orders as to costs.

4The application is supported by the affidavit of the Petitioner sworn on November 24, 2022. The Petitioner avers that there has been out of court negotiations by Community Leaders which have led to an amicable settlement of the entire dispute and it is in the interest of justice the application be allowed.

5The application is not opposed by the 1st, 2nd and 3rd Respondent. The 5th and 6th Respondent were represented but their counsel is absent.

6I have considered the application visa avis the reason for withdrawal of the petition. There being no objection by the parties present and who were ready with the hearing, I am satisfied that the application for withdrawal meet the threshold under Rule 21 of Election (Parliamentary and County Elections) Petition Rules, 2017.

7On the issue of cost, the 1st, 2nd and 3rd Respondent are not claiming costs for the petition. The 4th Respondent has never entered appearance whereas the 5th and 6th Respondent are represented by the learned counsel Mr Mohamud who is absent in today’s proceeding.

8In conclusion, this court issue the following orders: - 1. The Election Petition No E003 of 2022 with the leave of the Court is hereby withdrawn.

2. Each of the parties to bear its own costs.

3. Security of costs deposited into Court to be released to the depositor.

RULING DELIVERED, SIGNED AND DATED THIS 24THDAY OF NOVEMBER, 2022HON H M NYABERICHIEF MAGISTRATEIn the presence:Mr Nyipolo Advocate holding brief for Mr Taliti Advocate for the PetitionerMr Bosire Advocate for the 1st RespondentMr Enonda Advocate for the 2nd and 3rd RespondentNo appearance for the 4th, 5th and 6th Respondent.HON H M NYABERICHIEF MAGISTRATE