[2023] KEHC 1193 (KLR)

Munene & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition E001 of 2022) [2023] KEHC 1193 (KLR) (20 February 2023) (Ruling)

Neutral citation: [2023] KEHC 1193 (KLR)

Republic of Kenya

In the High Court at Nyeri

Election Petition E001 of 2022

DO Chepkwony, J

February 20, 2023

IN THE MATTER OF ELECTIONS ACT, 2011 AND THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES 2017 AND IN THE MATTER OF ELECTION OF MEMBER OF THE NATIONAL ASSEMBLY, KIENI CONSTITUENCY HELD ON 9TH AUGUST 2022

Between

James Maina Munene

1st Petitioner

Geoffrey Wahome Kingori

2nd Petitioner

and

Independent Electoral And Boundaries Commission

1st Respondent

David Muthuri Mbui, The Returning Officer Of Kieni Constituency

2nd Respondent

Wainaina Anthony Njoroge

3rd Respondent

Ruling

1. This Ruling relates to the Notice of Motion application dated 15th December, 2022 “the Application” seeking leave to withdraw the Petition herein. It has been filed pursuant to article 159 of the Constitution of Kenya, 2010 and rule 21 of the Elections (Parliamentary and County Elections Petition) Rules 2017“the Rules”.

2. The Application is supported by the affidavit of James Maina Munene, the 1st Petitioner herein on his own behalf and on behalf of the 2nd Petitioner, Geoffrey Wahome Kingóri sworn on 15th December, 2022. The 1st and 2nd Respondents filed their Replying Affidavit to the application sworn on 20th December, 2022 by the 2nd Respondent, David Muthuri Mbiu on his own behalf and on behalf of the 1st Respondent. The 3rd Respondent filed his Replying Affidavit to the application sworn on 19th December,2022.

Background 3. In the General Elections of 9th August, 2022 particularly Kieni Constituency in Nyeri Country, the 3rd Respondent was declared the winner of the Member of National Assembly seat by the 1st Respondent. This declaration gave rise to the present Petition by the Petitioners dated 6th September, 2022 who disputed the counting and the tallying done the 2nd Respondent. The 1st Petitioner was the Chief Agent of Kanini Kega James Mathenge, a contestant for the Member of National Assembly in Kieni Constituency. The Petitioners are also registered voters in Kieni Constituency Nyeri County.

4. The 1st and 2nd Respondents filed their response to the Petition dated 14th September, 2022 opposing the Petition in its entirety and seeking to have the elections for the Member of National Assembly Kieni Constituency declared as valid and the 3rd Respondent Wainaina Anthony Njoroge declared duly elected.

5. The 3rd Respondent filed his response to the Petition dated 16th September, 2022 also opposing the Petition and seeking to have the elections for the Member of National Assembly Kieni Constituency declared as valid and a declaration that he was duly elected as a Member of National Assembly, Kieni Constituency. Joseph Kuria Muthoga also filed his Response to the Petition in his capacity as a Chief agent of the 3rd Respondent sworn on 17th September, 2022.

6. The 1st Petitioner with the authority of the 2nd Petitioner filed a further Affidavit sworn on 29th September, 2022 in response to the Respondents’ responses to the Petition.

7. In the Petition, the parties also filed applications after applications including that dated 21st September, 2022 by the 3rd Respondent seeking extension of time to file Affidavits; the Notice of Motion application dated 12th October, 2022 and 17th October, 2022 where the court issued diverse orders on 22nd November, 2022 for provision of “read only access” to all KIEMS kits used, production of original or copies of all statutory declarations including forms 35A, 35B, 32, Forms C of election (Registration of Voters Regulations, 2012 covering Kieni Constituency between August, 2021- July, 2022, polling station diaries for all polling stations in Kieni constituency and Register of transferred voters from August 2021 – July 2022. The court also issued orders for the production of occurrence books extracts from Nairutia Police Station OB 07/26/07/2022, Endarasha Police station 07/09/08/2022 and Naromoru police station OB 31/31/05/2022. The Deputy Registrar of Nyeri High Court was directed to confirm compliance of the orders and supervise the same.

8. The Deputy Registrar conducted the process on 25th November, 2022 and finalized the process on 28th November, 2022. Pretrial conference took place where the court directed the hearing of the Petition to take place between 13th December, 2022 and 22nd December, 2022 and between 9th January, 2023 and 13th January, 2023. However, on the 13th December, 2022, the Petitioners informed the court of their intention to withdraw the Petition whereupon the court directed them to file their formal application for withdrawal of the Petition. It is this application dated 15th December, 2022 which is now the subject of this Ruling.

The Petitioners’ Case 9. The Petitioners state that though they were ready and willing to prosecute the Petition they wish to withdraw the same to give the 3rd Respondent time and space to exercise his mandate without the baggage of an Election Petition. It is their position that the prolonged Election Petition will be against public interest, cohesion and developmental action. The Petitioners state that no party will be prejudiced with the withdrawal as it has been done at an early stage and in good faith. The Petitioners state that the costs expended in the Petition have been minimal and therefore the court should allow the application with no orders as to costs. Further, the Petitioners state that the notice of intention to withdraw the Petition has been advertised in a national newspaper in compliance to the rules governing withdrawal of election petitions and therefore it should be allowed.

The 1st and 2nd Respondents’ Case 10. The 1st and 2nd Respondents’ position is that they are not opposed to the withdrawal of the Petition since it has been done at the Petitioners’ free will. However, they state that the Petitioners should pay the costs they have incurred such as taking instructions to defend the Petition, preparing the documentation for the Petition, the application dated 12th October, 2022 and 17th October, 2022 and subsequently complying with the orders of 21st November, 2022 which was costly, laborious, time consuming scrutiny exercise of production and preservation of copies of all the statutory electoral materials and provisional access to KIEMS kits of the entire Kieni Constituency.

11. The 1st and 2nd Respondents hold that the court has discretion to order costs upon a party who has caused unnecessary expenses whether such party is successful or not in order to discourage such expenses. They urge the court to award costs of Kshs 2,500,000. 00 which would be fair and reasonable.

The 3rd Respondent’s case 12. The 3rd Respondent position is similar to the 1st and 2nd Respondents that he does not oppose the withdrawal of the Petition save for the payments of the costs he has incurred. He holds that he was prepared to proceed with the hearing of the Petition on the hearing date when the Petitioners informed the court of their intention to withdraw the Petition. He states that he also had to get 34 witnesses to swear Affidavits in response to the Petition and thereby incurred costs which he ought to be compensated for.

The Submissions 13. The court directed parties to canvass the application by way of written submissions in respect of their respective positions. The Petitioners’ Submissions are dated 2nd February, 2023. They state that the withdrawal of Election Petition is enshrined under rule 21 of the Rules which states,“a.A Petition shall not be withdrawn without leave of the election courtb.the election court may grant leave to withdraw a Petition on such terms as to the payment of costs or as the election court may otherwise determine.”

14. The Petitioners state that they have complied with the Rules in that it published the Election Petition on 17th December, 2022 and served upon the Respondents. They hold that the law requires a party to seek the court’s leave to withdraw an Election Petition but a party should not be barred from withdrawing the Petition. They relied on the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR,where the court held that:-“A party’s right to withdraw a matter before the court cannot be taken away.”

15. The Petitioners hold that they have fulfilled all the requirements needed to withdraw the Petition which move has not been objected to by any of the Respondents save for the issue of costs which they hold is discretional to the courts. The Petitioners hold that they have sought to withdraw the Petition before the hearing commenced in order to grant the 3rd Respondent time to serve the members of his Constituency in harmony.

16. The Petitioners hold that the court should consider rule 4 of the Rules on the objectives of the Rules which is to facilitate just, expeditious, proportionate, affordable resolutions of Election Petitions The Petitioners hold that under section 84 of the Act, an election court should award the costs of and incidental to a Petition and such costs shall follow the cause. The Petitioners argue that the Act envisioned a situation where the Petition was heard and finalised hence the wording that costs shall follow the cause. They relied on the case of Sonko v Clerk, County Assembly of Nairobi City & 12others (Petition 14 (E021) of 2021) [2022] KESC 17 (KLR) (19 May 2022) (Ruling).

17. The Petitioners state that the court did not have the opportunity to determine the Petition since there was no event or cause in the Petition for the costs to follow.

The 1st and 2nd Respondents’ Submissions 18. On their part, the 1st and 2nd Respondents argue that they incurred costs despite the withdrawal of the Petition application being filed before the hearing commenced. They hold that they incurred unnecessary losses in relation to consumption of time, mobilization of the 1st Respondent’s personnel, expenses in facilitating preparation of affidavits of its ten witnesses, preparation to defend the electoral process, all at the expense of the taxpayer’s money to which they seek costs of Kshs.2,500,000. 00.

19. The 1st and 2nd Respondents hold that Election Petitions fall under the purview of litigation that is sui generis in nature. They hold that the issue of costs is guided under Section 84 of the Act which reads;- “an election court shall award the costs of and incidental to a Petition and such costs shall follow the cause”. The 1st and 2nd Respondents argue that unlike in Civil Procedure Rules where costs are discretional, under the Elections Act, courts are bound to award costs which follows the event. They rely on rule 30 (2) (b) of the Rules and state that the court has discretion to impose the burden of payment of costs on the party who has caused an unnecessary expense, whether such party is successful or not in order to discourage any such expense.

20. The 1st and 2nd Respondents urge the court to exercise discretion to cap the costs. It relied on the case of Japheth Muroko &another v Independent Electoral & Boundaries Commission & 2 others [2018]. The 1st and 2nd Respondents hold that it has been ready and willing to defend the Petition as part of its statutory duty as well as the will of the Member of Parliament of Kieni Constituency. They also rely on the case of Gilphine Mokeita Omwenga v Independent Electoral & Boundaries Commission & 2others [2018]eKLR, where the court held:-“there is no doubt that the Respondents put in a lot of time and resources in taking instructions, preparation, compilation of documents and affidavits and the long hours taken during the hearing of the numerous interlocutory application.”

21. The 1st and 2nd Respondents hold that they have incurred costs in taking instructions, defending the Petition, preparing documentation for interlocutory applications dated 12th October, 2022 and 17th October, 2022 and complying with the court orders of 21st November, 2022 which was a two –day costly and time consuming exercise for the production and preservation of the documents. They argue that Schedule VI (I) of the Advocates Remuneration Order, 2014 provides for instruction fees of not less than Kshs.500,000. 00 which is earned immediately upon taking instructions and even before filing the necessary pleadings. They hold that it filed so many pleadings and therefore the costs of Kshs.2,500,000. 00 would be fair and reasonable.

The 3rd Respondent Submission 22. The 3rd Respondent states that since the Petition was filed, many responses and applications have been filed in the matter. He holds that he filed a response to the Petition, an application dated 21st September, 2022 seeking extension of time to file his affidavits, responses to the applications dated 12th October, 2022 and 17th October, 2022 and submissions to the applications. He further argues that he attended the exercise in compliance with the court order of 21st November, 2022 which was tedious and a pre-trial conference on 18th October, 2022 where he confirmed that he would call 34 witnesses to testify.

23. The 3rd Respondent states that on the first day of the hearing being 13th December, 2023 he was ready to proceed with the hearing when the Petitioners informed the court of their intention to withdraw the Petition whereupon the court directed the Petitioners to file their application for leave to withdraw the Petition which was filed on 15th December, 2023. The 3rd Respondent holds that it filed a response to the said application as well as his submissions.

24. The 3rd Respondent holds that though he does not object to the withdrawal of the Petition he is entitled to costs under section 84 of the Act which states that;“an election court shall award the costs of and incidental to a Petition and such costs shall follow the cause”.The 3rd Respondent holds that the Act is in mandatory terms that costs should be awarded and that the only discretion that the court has is on the amount of costs. He holds that having incurred costs in defending the Petition the costs of 2,500,000. 00 would be reasonable.

25. He has relied on the case of Japheth Muroko &anor v Independent Electoral & Boundaries Commission & 2 Others[2018] which he holds that the court capped costs at Kshs.2,500,000/= for an Election Petition that was struck out before hearing after an application for withdrawal was filed. He also relied on the case of Dickson Daniel Karaba v Kibiru Charles Reubenson & 2others [2018] eKLR where the court capped costs at Kshs.5,000,000/= after an Election Petition was withdrawn after hearing of witnesses. The 3rd Respondent holds that the amount of Kshs.2,500,000/= is fair since the Election Petition herein has been withdrawn before the hearing of the witnesses commenced.

Analysis 26. It is trite law that rule 21(1) of the Rules allow a Petitioner to withdraw an Election Petition. On that strength, when the Petitioners informed the court of their intention to withdraw the Petition on 13th December, 2022, the court directed the Petitioners to file a formal application for leave to withdraw the Election Petition. The Petitioners filed the said application on their own volition and free will.

27. Though the law allows for withdrawal of the Election Petition, the application is not granted automatically since the electoral laws must be strictly observed. This was the position in the case of Peter Gatirau Munya v Independent Electoral and Boundaries Commission, Meru County Returning Officer & Kiraitu Murungi [2017]eKLR; where the Court stated thus: -“Under rule 21 of theElections (Parliamentary and County Elections) Petition Rules, 2017 (hereafter Election Petitions Rules, 2017) no Petition shall be withdrawn unless with the leave of the court. This is because Elections Petitions are sui generis litigation and is inherently a suit in public interest- not purely a private suit of the Petitioner- and therefore cannot simply be withdrawn at the instance of the Petitioner or even on the consent of the parties. This explains the elaborate procedure for withdrawal set out in Part V of the Election Petitions Rules, 2017. ”

28. The procedure for withdrawal of an Election Petition is outlined under the Rules. The Revised Election Petition Rules in the following Sections;23. (1)A Petition shall not be withdrawn without leave of the court.(2)The court shall grant leave on such terms as to the payment of costs or as the court may consider fit and just.(3)An application for leave to withdraw a Petition shall—(a)be in the Form EP 5 set out in the Schedule;(b)be signed by the Petitioner or a person authorized by the Petitioner;(c)state the grounds on which the application is supported; and(d)be filed at the office of the Registrar.(4)The parties to the Petition shall, before leave for withdrawal of a Petition is granted, file affidavits stating the grounds on which the Petition is intended to be withdrawn.(5)Despite sub-rule (4), a court may, on cause being shown, dispense with the affidavit of a person if it seems to the court on special grounds to be fit and just.(6)Each affidavit shall state “to the best of the deponent’s knowledge and belief, that no agreement or terms of any kind has been made, and that no undertaking has been entered into, in relation to the withdrawal of the Petition.”(7)Despite sub-rule (6), where a lawful agreement has been made with respect to the withdrawal of the Petition, the affidavit shall set out the terms of the agreement.Copies of and Notice of the application for withdrawal of Petition.24. (1)The Petitioner shall serve the respondent with a copy of the application to withdraw a Petition.(2)The Petitioner shall, publish in a newspaper of national circulation, a notice of intention to withdraw the Petition in Form EP 6 set out in the Schedule at the Petitioner’s own expense.

29. This procedure was also reiterated by the Court in the case of Ombati Richard v Independent Electoral and Boundaries Commission & 2others [2017] eKLR which allowed the withdrawal of the Petition after the compliance with the provisions on the withdrawal of an Election Petition. The Court held: -“In the instant case, I find that it was proved, to the required standards, that the Petitioner was the author of the notice and application to withdraw the Petition herein. The said application for withdrawal is in the prescribed Form 5 set out in the Schedule to Elections (Parliamentary and County Elections) Petitions Rules, 2017 and is supported by an affidavit setting out the grounds on which the Petition is intended to be withdrawn. As early as at 3rd October, 2017, all the respondents confirmed that they had been served with the said application and affidavit and that the notice of intention to withdraw the Petition had been published at page 10 of the Standard Newspaper of 3rd October, 2017, which is a newspaper of national circulation. Under the above circumstances, one can say that the withdrawal has technically crystallized ...”

30. The procedure calls for an application for leave to withdraw the Petition which has been done in this case. The Application was filed and served upon the Respondents who did not object to the withdrawal. The Petitioners also caused the notice of intention of withdrawal of Election Petition to be advertised. There is an Affidavit of Service sworn on 27th January, 2022 sworn by one Andrew Muturi Wambui and the Standard Newspaper Extract dated 17th December, 2022 which confirms the Advertisement of the Notice of Withdrawal of Petition.

31. I therefore find that the Petitioners having complied fully with the requirements of the Rules, the reasons advanced therein that the application has been made on free will and on own volition to give the 3rd Respondent a chance to execute his mandate having been elected the Member of Parliament of Kieni Constituency, the court is satisfied that the Election Petition can be withdrawn. I do note that no other party has filed any application for substitution in the Petition as required by the Rules, it therefore follows that the Petitioners’ Application for Leave to Withdraw the Election Petition is hereby allowed.

32. Although the Respondents did not object to the withdrawal of the Petition, they seek payment of the costs incurred of Kshs.2,500,000/= each which the Petitioners has urged the court to issue no orders as to costs. Having allowed the application for withdrawal, the court will now move to determine the issue of costs.

33. It is not disputed that the application herein was brought before the commencement of hearing of the many witnesses scheduled to testify. The 1st and 2nd Respondents and the 3rd Respondent all argue that though the hearing had not commenced, they had incurred costs in instructing their advocates, preparation of the pleadings, getting their witnesses to swear the Affidavits, attending court on diverse dates, attending the two-day exercise under the supervision of the Deputy Registrar which was costly, time consuming and tedious and therefore ought to be compensated.

34. I agree with the Respondents that although the application was brought at an early stage, a lot has already been done. I have taken consideration of the bulk of the pleadings filed, the time spent in preparation of the documents, the court attendances and hold that the 1st and 2nd Respondents as well as the 3rd Respondent are entitled to costs.

35. This mandate of granting costs in Election Petitions is provided to courts under section 84 of the Elections Act and rule 30 of the Rules.The Revised Rules state as follows,32. (1)The court shall, at the conclusion of a Petition, make an order specifying—(a)the total amount of costs payable; and(b)the persons by and to whom the costs shall be paid.(2)When making an order under sub rule (1), the court may—(a)disallow any costs which may, in the opinion of the court, have been caused by vexatious conduct, unfounded allegations or unfounded objections, on the part of either the Petitioner or the Respondent; and(b)impose the burden of payment on the party who has caused an unnecessary expense, whether such party is successful or not, in order to discourage any such expense.(3)The abatement of a Petition shall not affect the liability of the Petitioner or of any other person to the payment of costs previously incurred

36. In this case, the costs incurred by the Respondents was as a result of the Petition filed by the Petitioners which they ought to be compensated. Under sub rule 3 of rule 32, though the Petition has abated or has been withdrawn, the Petitioners are still liable to pay costs incurred by the Respondents in defending themselves in the Petition.

37. The court has a duty to cap the total costs payable. The court in the case of Henry Okello Nadimo v IEBC & 2others, Busia Election Petition No.2 of 2013 capped costs of Kshs.4,000,000/ in a withdrawn and fully heard Election Petition.

38. The court in the case of Abdisalan Mohamed v Independent Electoral & Boundaries Commission [2013]eKLR where the Petition withdrawn before hearing took place, capped costs at Kshs.1,000,000. 00 to the 1st Respondent IEBC and Kshs.1,500,000. 00 to the 2nd Respondent therein.

39. The 1st and 2nd Respondents as well as the 3rd Respondents have prayed for costs of Kshs.2,500,000. 00 each. Considering that the Petitioners have brought their application at an early stage and in good faith to promote cohesion in Kieni Constituency, I shall cap the costs at Kshs.1,500,000. 00 for the 1st and 2nd Respondents owing to the fact that they also facilitated and complied with the court orders of 21st November, 2022 for the provision of the statutory documents which exercise was tedious and time consuming and Kshs.1,000,000/= for the 3rd Respondent. The security which was deposited by the Petitioners at the point of filing the Election Petition should be utilized to pay part of the costs awarded to the 1st and 2nd Respondents and the 3rd Respondent in equal shares of Kshs.250,000. 00 each.

40. In the end, I make the following orders:a.The Application dated 15th December 2022 has merits and the same is allowed under the following terms:i)The Petitioners are hereby granted leave to withdraw Nyeri Election Petition E001 of 2022, James Maina Munene & another versus Independent and Electoral Boundaries Commission & 2 others.ii)The Nyeri Election Petition E001 of 2022, James Maina Munene & another versus Independent And Electoral Boundaries Commission & 2 others dated 6th September 2022 is hereby marked as withdrawn with costs to the 1st and 2nd Respondents as well as the 3rd Respondent.iii)The 1st and 2nd Respondents’ costs are hereby capped at Kshs.1,500,000. 00. iv)The 3rd Respondent’s costs are hereby capped at Kshs.1,000,000. 00. v)The security of Kshs.500,000. 00 paid by the Petitioners at the point of filing the Election Petition shall be utilised to pay part of the costs of the 1st and 2nd Respondents and the 3rd Respondent at equal shares of Kshs.250,000. 00 each.vi)The 1st and 2nd Respondents as well as the 3rd Respondents shall forward their Bill of Costs to the Deputy Registrar of the High Court for taxation in accordance with the Civil Procedure Act, and subject to the limitation on the capped costs of Kshs.1,500,000/= and Kshs.1,000,000. 00 respectively as ordered hereinabove.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 20TH DAY OF FEBRUARY, 2023. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Njoroge Mungai counsel holding brief for Mr. Tumu and Ndegwa Njiru counsel for PetitionerMr. J. A. Mwangi counsel holding brief for Mr. Mutuku Gichimu counsel for 3rd RespondentCourt Assistant - Sakina