[2017] KEHC 2860 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

ELECTION PETITION NO. 5 OF 2017

MUGAMBI IMANYARA.......................................................PETITIONER

VERSUS

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

MERU COUNTY RETURNING OFFICER...............2ND RESPONDENT

FRANKLIN MITHIKA LINTURI...............................3RD RESPONDENT

RULING

On 2nd October 2017, parties herein entered into consent as follows:-

1. That the 1st and 2nd Respondent counsel to file an affidavit confirming the following:-

a. The exact location of KIEMS kits in relation to impugned senatorial elections for Meru County.

b. To confirm Security of the KIEMS kits.

c. Confirm extent of reconfiguration in preparation of fresh presidential elations.

d. Confirm whether data of impugned Senatorial Elections for Meru county are available and manner in which they can be availed in court and/or explain why they can’t be availed.

e. Petitioner and 3rd Respondent to be at liberty to respond to 1st and 2nd Respondents affidavit in regard to the elections materials by 10th October 2017.

f. The 1st and 2nd Respondent to confirm other election materials related to petition herein to be used in the fresh Presidential Elections and the manner of preservation.

Mrs Kinara counsel for the 1st and 2nd Respondent filed and served affidavit sworn by James Muhati described as Director, Information and Communication Technology at 1st Defendant offices.

However Mr Gitonga counsel for the petitioner in oral submissions in response to the affidavit said the 1st and 2nd Respondents had disregarded the Rule of Law and Powers of the court as the affidavit by James Muhati does not confirm that KIEMS kits referred to relate to the impugned election as no serial numbers are referred to.

He said that IEBC should provide storage and allow parties to put additional seals and/or padlock at the storage. The petitioners counsel was reminded that consent entered into by parties on 2. 10. 17 required a response to 1st and 2nd Respondents affidavit in regard to the issue of preservation, Reconfiguration and availability to be made by way of affidavit for which Mr Gitonga applied for leave to comply by end of the day on 11. 10. 2017. This was not objected to by the Respondents.

Further the petitioners Learned Counsel Mr Gitonga applied that the court orders the 1st Respondent to supply further particulars in a myriad of issues in the affidavits of the Respondents but this was objected to by the Learned Counsels for the Respondents Mrs Kinara and Ms Awuor for the reasons that application was being made from the bar. They said Mr Gitonga advocate can file the application for supply of further particulars and adduction of further evidence to be heard together with petitioners applications dated 6. 9.2017 and 8. 9.2017. Ms Awuor submitted that the petitioner in seeking for further particulars wants to use the court to get evidence to prosecute petition and trying to disguise application for amendment of petition as directions.

Mr Gitonga said that it is provided in the rules that a court can order for further particulars to be provided and there is no requirement for a formal application. He said the oral application is based on Rule 15(1) (e) and (h) of Elections (Parliamentary and county Elections) petitions Rules 2017.

Having listened to and considered submissions by the learned counsels for the petitioner and Respondents respectively in regard to application for furnishing of further and better particulars in pursuit of Rule 15(1) (e) of Elections (Parliamentary and County Elections) Petitions 2017 and application adducing further evidence in pursuit of Rule 15(1) (h), the following is the finding of this court:

Rule 15(1) provides that within 7 days after the 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:-

15(1)(e) give an order, where necessary for furnishing further particulars.

15(1)(h) give directions as to the filing and serving of any further affidavits or giving of additional evidence.

It is true that the Rules don’t prescribe for the manner of making application and the implication is that it may be made upon application by any party or Suo motto by the court. However for the court to establish if it is necessary to issue an order for further particulars it must be convinced by the applicant as to the merits of the orders sought and the party against whom such particulars are being sought must be given an audience to respond to the application made. The court must be satisfied that the particulars being applied for are not prejudicial to the party from whom they are being sought. Therefore this can only be done if evidence by way of affidavit is filed to enable the opposing party to respond adequately. The petitioner will have to convince the court that the further particulars sought to be furnished will clarify issues already pleaded and that it is not meant to regularize or salvage their petition in this court. This was the finding in Election no. 3 of 2013 at Meru High Court and John Michael Njenga Mututho vs Jayne Njeri Kihara and 2 others in Civil Appeal No. 102 of 2008. It is therefore the view of this court that petitioner has to file a formal application and serve the Respondents giving specific particulars to be furnished and the reasons thereto.

In regard to additional evidence, again the court has discretion to allow filing of further affidavits and not new or additional evidence but this cannot be done by ambushing ones opponent. Sufficient notice has to be given and the applicant must show that the additional evidence is not in any way prejudicial to the other parties to the dispute or undermine timely resolution of the electoral dispute. Supreme court petition No. 5 of 2013 sets out clear guidelines for determining such an application and it would not be practical to decide whether it is merited when application is made from the bar and without giving an opportunity to the other parties to be consulted and respond within good notices to the application.

In the premises it is the finding of this court that petitioner files and serves a formal application within 2 days and the Respondents upon service will have up to 16th October 2017 to respond to the application by petitioner. This court further orders that if any party wishes to file any application they should do so and serve and have them heard together with petitioners applications slated for 19th October 2017. Thereafter this court shall not entertain any further applications.

In regard to the preservation of the elections materials , Rule 16 provides for the court to give directions on the manner of storage of ballot boxes and other elections materials and Rule 16 (5) provides that the election court may order that additional seals be placed on the ballot boxes related to the elections for which a petition has been lodged.

Learned counsel for the 1st and 2nd Respondent said she had confirmed there are 2 warehouses housing ballot boxes for all elections materials for the entire Meru County including elections materials for other Election Petitions in other courts within Meru County and it will inconvenience other parties to those other elections petitions if the petitioner is allowed to put additional padlocks to the 2 warehouses to secure election materials related and/or in respect of the petition herein. Mr Gitonga counsel for petitioner didn’t dispute this fact and in fact said the ideal situation would be for the court to take the election materials into its custody. Unfortunately this court has space constraints and is not even enough for its own staff and therefore the options of taking custody is not viable. Subjecting other parties in other election petitions within the Meru County to the petitioners’ request to put additional padlocks to the two warehouses housing the election materials will also not be fair and just in the circumstances. It will amount to this court making orders in other election petitions for which it has not been gazetted to preside.

I will therefore make the following optional orders in respect of the matter before court:-

a. The 1st Respondent and the petitioner to identify a separate warehouse to be confirmed suitable by the Deputy Registrar within the next 7 days for preservation of election materials herein as applied by petitioner.

b. If that option is agreeable to the petitioner then the cost of hire of the said warehouse to be paid for by the petitioner who should give an undertaking to that effect.

c. The transportation of the election materials to the warehouse to be borne by the petitioner.

d. The security of the said warehouse to be provided for by the IEBC through Meru County Security Committee Chairman.

e. The petitioner also to provide if he so wishes independent security Guards from a reputable security company.

f. The 1st Respondent, The petitioner and the DR each to have a padlock to the entrance of the said warehouse and same to be accessed only upon this court issuing orders.

In the alternative and if the 1st option is not practical for one reason or the other the DR to supervise the placing of additional seals on the ballot boxes related to the election herein and to take an inventory of the serial numbers of each of the seals. The inventory of the serial numbers to be signed by parties and their counsels and to be filed in court.

Hon. A.Ong’injo J

11. 10. 2017

Ruling Signed Delivered and Dated this 11th Day of

October 2017.

In the presence of :-

Petitioner:- Mr Mutuma Advocate Holding Brief for Mr Gitonga for Petitioner

1st Respondent

2nd Respondent Mrs Kinara Advocate

3rd Respondent – Mr Kiogora Mugambi for 3rd Respondent

Hon. A.Ong’injo J

11. 10. 2017

Mr Mutuma Advocate

I pray to be supplied with a copy of the ruling.

Mr Kiogora

3rd Respondent also wishes to place seal.

Order

Copies of ruling to be supplied to parties upon paying for copying charges. The order says seals to be placed and 3rd Respondent is not excluded.

The 3rd Respondent should also have a padlock placed in 1st option.

Hon. A.Ong’injo J

11. 10. 2017