[2018] KECA 544 (KLR)

IN THE COURT OF APPEAL

AT NAKURU

(CORAM: WAKI, SICHALE & KANTAI, JJ.A.)

ELECTION PETITION APPEAL (APPLICATION) NO. 9 OF 2018

AND

IN THE MATTER OF THE ELECTION OF MEMBER OF NATIONAL ASSEMBLY ELDAMA RAVINE CONSTITUENCY

AND

IN THE MATTER OF KABARNET ELECTION PETITION NO. 1 OF 2017

BETWEEN

MUSA CHERUTICH SIRMA ............................................................. APPELLANT/RESPONDENT

VERSUS

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION .................................................. 1ST RESPONDENT/APPLICANT

THE ELDAMA RAVINE CONSTITUENCY RETURNING

OFFICER (NDIRANGU PETER KURIA) ................................. 2ND RESPONDENT/APPLICANT

MOSES LESSONET ..................................................................... 3RD RESPONDENT/APPLICANT

(An application to strike out the notice of appeal and the record of appeal filed on the 9th of March 2018 and the 29th of March 2018 respectively, alternatively an order that the appellant be ordered to deposit security for costs of Kshs.2,000,000/=)inElection Petition No. 1 of 2017)

********************

RULING OF THE COURT

Musa Cherutich Sirma (“the applicant”)filed at the High Court of Kenya at Kabarnet Election Petition No. 1 of 2017 where he challenged the election of Moses Lessonet as the Member of Parliament of Eldama Ravine Constituency in Baringo County during the national elections that were conducted on 8th of August, 2017. The petition was heard by Justice Edward Muriithi who in a judgment delivered on 2nd March, 2018 dismissed the petition. The appellant filed Election Petition Appeal No. 9 of 2018 but this has been challenged by the appellants, the Independent Electoral and Boundaries Commission (the 1st applicant), Ndirangu Peter Kuria the Eldama Ravine Constitunecy Returning Officer (2nd applicant) and Moses Lessonet (3rd applicant) in two separate motions. The first in time is filed by the 3rd applicant which is a notice of motion dated 6th April, 2018 said to have been brought under Article159(2) (d) of the Constitution of Kenya, 2010,rule 17(1) and 27 of the Court ofAppeal (Election Petition) Rules,2017 and all enabling provisions of the law. It is prayed that we be pleased to issue an order striking out the notice of appeal filed on the 9th March, 2018 at the High Court of Kenya at Kabarnet as the same was filed in the wrong court and is as such incompetent ab initio; that we be pleased to strike out the record of appeal filed by the appellant on the 29th March, 2018 for want of proper notice of appeal and/or any notice at all since the election appeal herein was not properly filed and/or is not properly before court; that the notice of appeal filed on 9th March, 2018 and the record of appeal filed on 29th March, 2018 be dismissed; in the alternative that we order the appellant to deposit security for costs in the sum of shs.2,000,000/= within such time as circumscribed by the court, and finally, that the costs of the application and the appeal be borne by the appellant. There are grounds set out in support of the motion but because the second motion is similar to the first one we shall set out the prayers that are sought there.

The second motion dated 10th April, 2018 is brought by the 1st and 2nd applicants (Independent Electoral and Boundaries Commission and the Returning Officer) under rule 6, 17and26of theCourt Of Appeal (Election Petition)Rules, 2017. It is prayed that the appellant's record of appeal dated 28th March, 2018 served on the respondents on the 3rd April, 2018 be struck out as there is no notice of appeal on record as contemplated by rule 6 of the Court of Appeal (Election Petition) Rules2017 and there is no deposit of security for costs as contemplated under rule 26 of the said rules and that we award costs of the application to the applicants.

A summary of the grounds in support of both motions is that judgment appealed from was delivered on 2nd March, 2018 where the petition was dismissed with costs; that the appellant in the appeal being dissatisfied by that decision proceeded to file a notice of appeal in the High Court at Kabarnet on 9th March, 2018. It is said that in doing so the appellant flouted the rules regarding election petition appeals as laid down in the Court of Appeal (Election Petition) Rules 2017 (hereafter “the rules”); that rule 6 of the rules is couched in mandatory terms in prescribing that notices of appeal with regard to election petitions shall be lodged in this Court; that there is no proper or any appeal therefore before this Court given that the notice of appeal was not filed in this Court; that election petitions is a creature of a special jurisdiction where ordinary civil process is inapplicable given the time lines prescribed and the rules that have been formulated to govern them as such strict compliance with the regulations should not be an option or left to the discretion of litigants.

According to Mr. Moses Lessonet the appellant is a vexatious litigant and should be described and declared as such having harassed the court in the past with a litany of cases.

According to the 1st and 2nd applicants, rule 6(2)and(3) of the rules should be applied strictly. According to them the appellant is in breach of those rules because the notice of appeal was filed in the High Court instead of this Court; does not identify the source of the right of appeal and the basis for the jurisdiction of the court to determine the appeal; does not precisely set out the grounds of the appeal; does not concisely state the reliefs sought and is not substantially in the form as set out in the schedule. It is urged in further grounds that our jurisdiction can only be triggered through the filing of a notice of appeal in the absence of which we cannot invoke jurisdiction; that a notice of appeal is a primary document and thus the record cannot be cured by filing a supplementary record of appeal to include a notice of appeal and thus the appeal as filed is incompetent; that the notice of appeal is a vital process for an institution of an appeal to this court and that its filing is integral to the validity of an appeal and that failure to adhere to rules of filing notice of appeal is a matter of procedural substance and a procedural substantive requirement.

The other matter set out relates to security deposits for an election petition appeal but the applicants did not pursue that prayer at the hearing of the motions, it being noted that the appellant had since deposited security for costs with the court.

The supporting affidavits of Moses Lessonet for the first motion and Kahiga Waitindi,an advocate, for the second motion, reproduce and repeat the matters we have summarised and it is not necesary to set them out here again.

Election Petition Appeal No. 9 of 2018 came for Case Management before us on 19th April, 2018 when learned counsel for the various parties asked us to hear and determine the motions before the appeal itself could be heard. We agreed and convened on the 25th April, 2018 after parties had had the opportunity to respond to the motions and to file written submissions and lists of authorities.

We have considered the written submissions by the 1st and 2nd applicants filed on 23rd April, 2018; the written submissions of the 3rd applicant filed on the 24th April, 2018, and those of the appellant (respondent) Musa Cherutich Sirma filed on 23rd April, 2018. We have also perused and considered the lists of authorities filed by the parties and we thank the advocates for the various parties for putting together their cases before us within the limited time we allocated to them dictated by strict time-lines required in law for determination of a matter like this one.

Mr. Lawrence M. Karanja, learned counsel for the 1st and 2nd applicants in a highlight of the written submissions and in arguing the motion dated 10th April, 2018 submitted that because the notice of appeal was filed at the High Court of Kenya at Kabarnet and not in this Court there was no notice of appeal in accordance with rules2 and 6 of the rules. Learned counsel questioned the notice of appeal filed at the High Court of Kenya at Kabarnet which stated that it was an appeal against the whole decision which according to counsel offended section 85A of the Elections Act which allows appeals to this court from an election court on issues of law only. According to counsel the notice filed at the court in Kabarnet offended rule 6 of the rules as challenging the whole decision could only be done if the finding of the High Court was on an issue of law. Counsel further submitted that because our jurisdiction could only be invoked through filing of a valid notice of appeal there was no appeal which we could hear. Counsel relied on the decision of the Supreme Court of Kenya in Zacharia Okoth Obadov Akongo Oyugi & 2 Others[2014] eKLRwhere it was held that where there is procedure set out for the doing of any act that procedure must be followed. He drew our attention to the notice of appeal filed at the court at Kabarnet which stated on its face that it was drawn and dated at Kabarnet and where provision for lodging of the notice stated that the Deputy Registrar of the High Court, Kabarnet, was to receive the appeal. Learned counsel challenged the assertion of the appellant that a notice of appeal had been presented at this Court in Nakuru but was not accepted wondering why there were no letters of protest to that effect or an affidavit by an officer of this Court in Nakuru to state those facts. For all that he asked us to strike out the record of appeal.

Mr. B.N. Kipkoech, learned counsel for the 3rd applicant in agreeing with submissions of Mr. Karanja submitted that the rules gave a format for a notice of appeal and that the notice of appeal filed at the High Court at Kabarnet was a strange document in that it did not comply with the rules or the format set out in the rules. He cited the Supreme Court decision in Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 Others[2015] eKLRand submitted that without a proper notice of appeal the court was not properly seised of the matter. According to counsel, the issue was jurisdictional and there was no proper record of appeal before us. Counsel further submitted that even Article159 of the Costitutionof Kenya, 2010 could not be of assistance to the appellant as rules on election petition and election petition appeals must be followed. He concluded his submissions by stating that there was no provision in the rules for filing a memorandum of appeal and a notice of appeal must state the grounds of appeal.

Mr. Steve Biko, learned counsel for the appellant/respondent in opposing the motions cited rule 19(2)of the rules and urged us to refuse the motions because they had been filed outside of the seven days allowed a party who wished to challenge an appeal. According to him the first motion was filed 28 days and the second motion 32 days after notice of appeal had been filed. Counsel submitted that the notice of appeal filed was competent as under rule 6 of the rules the intention is to inform the High Court that an appeal is being filed. He cited various paragraphs of the replying affidavit of Musa Cherutich Sirma detailing why notice of appeal was filed at the High Court of Kenya at Kabarnet. According to learned counsel the rules allowed an appeal to be heard and determined if notice of appeal was substantially in compliance with the forms set out in the rules. According to counsel, the notice of appeal was filed at the High Court in Kabarnet and was validated by being stamped at the Court of Appeal sub-registry in Nakuru. Learned counsel cited Article159 of the Constitution and urged us to consider the substance of the appeal and not shut out a party merely because he went to the wrong registry. He further urged that the court salvage parties who may have been misled to file appeals in the wrong registry. He cited the case of Nicholas Kiptoo Arap Salat (supra) for the proposition that deviations in form and procedure which do not go to the jurisdiction of the court should be ignored. According to counsel filing of a notice of appeal was not a matter going to the jurisdiction of the court.

In a brief reply Mr. Karanja submitted that he had applied to strike out the record of appeal for the reason that it did not have valid notice of appeal. According to him he was served with the record of appeal on 3rd April, 2018 and he filed the motion on 10th April, 2018 within the seven day window allowed by the rules. According to counsel the notice of appeal that was served on his law firm was a strange document which he could not apply to strike out as the document was not known in law but he made the application when that document was included in the record of appeal. According to counsel the notice of appeal did not in any way comply with the requirement on the same as set out in the rules.

Mr. Kipkoech on his part stated that he was served with record of appeal on 3rd April, 2018 and filed the motion three days later on 6th April, 2018. Like Mr. Karanja he stated that he could not apply earlier to strike out notice of appeal because according to him it was a strange document not known in law and he moved the court after it was included in the record of appeal. On the fact that he had on behalf of the 3rd applicant filed a cross appeal, he stated that the same stated on its face that it was filed without prejudice to the incompetence of notice of appeal.

We have considered the motions, the submissions both written and oral and the lists of authorities relied on.

Because of the central part played by the notice of appeal which is at the centre piece of the contentions whether there is a valid notice of appeal or not, we set out the notice of appeal that was lodged at the High Court of Kenya at Kabarnet. It says:

“REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

ELECTION PETITION NO 1 OF 2017

IN THE MATTER OF THE ELECTION FOR MEMBER OF PARLIAMENT ELDAMA RAVINE CONSTITUENCY

IN THE MATTER OF THE HIGH COURT ELECTION PETITION NO 1 OF 2017

BETWEEN

MUSA CHERUTICH SIRMA ............................................................PETITIONER

AND

THE INDEPENDENT ELECTORAL AND

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

THE ELDAMA RAVINE CONSTITUENCY

RETURNING OFFICER (NDIRANGU PETER KURIA) ..... 2ND RESPONDENT

MOSES LESSONET ................................................................. 3RD RESPONDENT

(Appeal from the decision of the High Court of Kenya at Kabarnet Hon. Justice Edward Muriithi’s judgment dated 2nd March 2018, in the High Court Election for Member of Parliament Eldama Ravine Constituency Election Petition No 1 of 2017)

NOTICE OF APPEAL

(Under Section 85A of the Elections Act 2011, Rule 35 (Elections (Parliamentary and County Election) Petition Rules 2017, Rule 6 and 7 of the Court of Appeal (Election Petition) Rules 2017 and all enabling laws of Kenya)

TAKE NOTICEthat the Petitioner herein being dissatisfied with the judgment/decision/order of this Honourable Court (Hon Justice Edward Muriithi) given at Kabarnet on the 2nd day of March 2018, intend to appeal to the Court of Appeal against the whole of the said decision.

THE ADDRESSfor service of the Petitioner is care of PROF TOM OJIENDA & ASSOCIATES, GOLFVIEW OFFICE SUITES OPP. MUTHAIGA GOLF CLUB, 4TH FLOOR, SUITE NO. A4(i) P.O. BOX 14246-00400, NAIROBI.

IT IS INTENDED to serve the copies of this Notice upon:

MIRUGI KARIUKI & CO

ADVOCATES

INDER SINGH BUILDING, 2ND FLOOR

KENYATTA AVENUE

P.O. BOX 1689-20100

NAKURU.

GORDON OGOLA, KIPKOECH & CO

ADVOCATES

TAMOH PLAZA, 2ND FLOOR

GEOFFREY KAMAU WAY

P.O. BOX 17589

NAKURU

DATED AT KABARNET THIS 7TH DAY OF MARCH 2018

PROF. TOM OJIENDA & ASSOCIATES

ADVCOATES FOR THE PETITIONER

LODGED in the High Court of Kenya at Kabarnet this day of May 2018

DEPUTY REGISTRAR

HIGH COURT OF KENYA AT KABARNET

The Applicant requests that the appeal be set down for hearing in the appropriate registry.

DRAWN & FILED BY:

PROF. TOM OJIENDA & ASSOCIATES

GOLF VIEW OFFICE SUITES,

OPP. MUTHAIGA GOLF CLUB,

4TH FLOOR, SUITE NO. A4(I),

P.O. BOX 14246-00400, MUTHAIGA,

NAIROBI, KENYA.

TO BE SERVED UPON:

MIRUGI KARIUKI & CO

ADVOCATES

INDER SINGH BUILDING, 2ND FLOOR

KENYATTA AVENUE

P.O. BOX 1689-20100

NAKURU.

GORDON OGOLA, KIPKOECH & CO

ADVOCATES

TAMOH PLAZA, 2ND FLOOR

GEOFFREY KAMAU WAY

P.O. BOX 17589

NAKURU.”

The Court of Appeal (Election Petition) Rules 2017 were enacted as Legal Notice No. 114 under the Appellate Jurisdiciton Act Chapter 9 Laws of Kenya. In the interpretation section an appeal means an appeal from the decision of the High Court while “court” means the Court of Appeal.

A “notice of appeal” means notice lodged in accordance with rule 6 of the rules and registry means the “registry” of the court and includes a sub-registry.

Rule 4(2) provides that where there is no applicable provision in the rules, the Court of Appeal Rules, 2010 relating to civil appeals shall apply to an election petition appeal in so far as they are not inconsistent with these rules, i.e. the 2017 rules.

By rule 4(3), where there is a conflict between 2017 rules and Court of Appeal Rules 2010 on matters relating to election petition appeals the provisions of the (2017) rules shall prevail over the 2010 rules.

By rule 5, the effect of failure to comply with the rules shall be a matter for determination at the court's discretion subject to the provisions of Article 159(2) (d) of the Constitution and the need to observe the timelines set by the Constitution or any other electoral law.

It is provided at rule 6 of the rules that:

“6. (1) A person who desires to appeal to the Court shall file a notice of appeal, which shall be lodged in quadruplicate in the registry.

(2) A notice of appeal shall be filed within seven days of the date of the decision appealed against.

(3) A notice of appeal shall be in separate numbered paragraphs and shall –

(a) specify whether all or part of the judgment is being appealed and, if part, which part;

(b) provide the address of service of the appellant and state the names and addresses of all persons intended to be served with copies of the notice; and

(c) contain a request that the appeal be set down for hearing in the appropriate registry.

(4) It shall not be necessary that the decree or order be extracted before lodging a notice of appeal.

(5) A notice of appeal shall be substantially in the Form EPA 1 set out in the Schedule and shall be signed by or on behalf of the appellant.”

The other relevant provision for the determination of the motions before us is rule 19 of the rules which provides as follows:

“19. (1) A person affected by an election petition appeal may, within seven days from the date of service of the notice of appeal or record of appeal, as the case may be, apply to the Court to strike out the notice or the record of appeal on the ground that no appeal lies or that some essential step in the proceedings has not been taken within the time prescribed by these Rules.

(2) Where no application is filed within the period stipulated under sub-rule (l), a person may not raise the issue later.”

The rules have a schedule of forms and relevant to the motions here is form EPA1 on notice of appeal. It provides:

“SCHEDULE

FORMS

FORM EPA 1 (r. 6 (s)

IN THE COURT OF APPEAL AT…….ELECTION PETITION APPEAL NO……... OF 20 …….

IN THE MATTER OF……………………………………………...

IN THE MATTER OF . …………………………………………………..ELECTION PETITION NO.......OF 20 .....

BETWEEN

………………………………………………………………………………………………………………..APPLICANT

AND

………………………………………………………………………………………………………………..RESPONDENT

(APPEAL FROM THE …………………………….. OF THE HIGH COURT OF …………….. AT ………

(HON. JUSTICE) ……………………………….. DATED …………….., 20………………………………………….,

IN ………………………………… ELECTION PETITION NO. ………………….. OF 20 …………………………..)

NOTICE OF APPEAL

TAKE NOTICE that ..............................being dissatisfied with the decision of the Honourable Justice.......given at ..................on the..........day of ............20. .......... intends to appeal to the Court of Appeal against the whole of the said decision//such part of the said decision as decides that ……………………………………………………………………………………………………………………….

………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………….……………………………………

The address for service of the appellant is …………………………………………………………………………….

It is intended to serve copies of this notice on...........................................................................

The applicant requests that the appeal be set down for hearing in the appropriate registry. Dated this ...........................day of. .........................20. ..........

Respondent.. .......................Signed.. ................................ Advocate for the respondent”

It is the case of the applicants that the notice of appeal lodged at the High Court of Kenya, Kabarnet, did not comply with the rules either in form or substance and that the same is defective and the record of appeal containing it should be struck out.

We have set out in full the notice of appeal filed by the respondent (appellant). It says on its head “In the High Court of Kenya at Kabarnet” and was filed in that Court. It states at its foot that it is “LODGED in the High Court at Kabarnet this day of March 2018”.

Section 85A of the Elections Act provides that:

“An appeal from the High Court in an election petitionconcerning membership of the National Assembly, Senate or the Office of County Governors shall lie in the Court of Appeal on matters of law only and shall be –

a)filed within 30 days of the decision of theHigh Court; and

b)heard and determined within six months of the filing of the appeal.”

The Supreme Court of Kenya in the case of Samuel KamauMacharia and Anor vKenya Commercial Bank Limitedand 2 OthersSupreme Court Civil ApplicationNo.2 of2011 (ur)held as follows on the issue of jurisdiction:

“A court’s jurisdictionflows from either theConstitution or legislation or both thus a court of law can only exercisejurisdictionas conferred by theConstitutionor otherwrittenlaw. It cannot arrogate itselfjurisdictionexceeding that which is conferred upon it by law. We agree with counsel for the 1stand 2nd respondents jurisdictionin his submissionthatthe issueas towhether aCourt ofLaw hasjurisdictionto entertain a matter before it is not one of mere proceduraltechnicality; it goes to the very heart of the matter for withoutjurisdictionthe court cannot entertain any proceedings.”

This Court sitting at Kisumu in the case of Benjamin Ogunyo Andama v Benjamin Andola Andayi and 2 Others[2013] eKLRon election matters stated:

“Election petitions form their own category and are neither controlled byCivil Procedure Actand Rules made thereunder nor are they controlled by theCivil Procedure Rules. They are neither criminal nor civil in nature. They are a class of their own.Althoughrule 35 of the Election Petition Rules to which we shall refer herein later says:

“An appeal from the judgment and decree of theHigh Courtshall begovernedby theCourt of Appeal Rulesstill there are someCourt of Appeal Ruleswhich cannot be applied in the election petition matters. One glaring example is the time allowed for filing the appeal which if theCourt of Appeal Ruleswere to be applied would be sixty(60)days from the date of filing the notice of appeal but which underthe ElectionsAct is thirty(30)days from the date of announcement of results. This is only one example. There are many other provisions ofthe Court of Appeal Ruleswhich cannot be applied to election petition appeals.”

And in Nicholas Kiptoo Arap Korir Salat (Supra) on the question of filing documents in court, the Supreme Court stated:

“However, it cannot be gainsaid that where the law provides forthetime within which something ought to be done, if that time lapses, one need to first seekextension ofthat time before he can proceed to do thatwhichthe law requires.”

In the same case, the Supreme Court declared:

“A notice of appeal is a primarydocumentto be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is ajurisdictionprerequisite. TheCalifornia Supreme Courtwhile reversing theCourt ofAppeal decision that had dimissed the appellant’s notice of appeal as having been filed out of time in Silverbrand V Countyof Los Angeles [2009] 46 Cal. 4th106, 113 stated inter alia:

As noted by theCourt of Appealthe filing of a timely notice of appeal is a jurisdictionalprerequisiteunless the notice is actually orconstructivelyfiledwithinthe appropriate filing period, an appellate court is withoutjurisdictionto determine the merits of the appeal and must dismissthe appeal. The purpose of this requirment is to promote the finality of judgments by forcing the losing party to take anappealexpeditiously or not at all.”[Emphasis added].

The Supreme Court of Kenya while interpreting the effect of compliance with rules of procedure as set out in law had this to say of Article 159(2) (d) of the Constitution in Raila Odinga & 5 Others vIndependent Electoral and Boundaries Commission & 3 Others [2013] eKLR:

“Indeed, this Court has had occasion to remind litigants that Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls. All that the Courts are obliged to do, is to be guided by the principle that “justice shall be administered without undue regard to technicalities”. It is plain to us that Article 159 (2) (d) is applicable on a case by case basis.”

As we have shown, and as confirmed by the Supreme Court of Kenya in Nicholas Kiptoo Arap Salat (supra), a notice of appeal is a primary document in an appeal without which an appellant cannot have or sustain the appeal. Needless to say, we are bound by decisions of the Supreme Court. Again, as we have shown earlier in this ruling, the rules define a notice of appeal as a notice lodged in accordance with rule 6 of the rules. That rule requires a person who desires to appeal from the decision of the High Court in an election petition to file a notice of appeal in the registry, and “registry” is defined as the registry of this Court. That notice shall, amongst other requirements, be in Form EPA1 which form is set out in the schedule and which we earlier on reproduced in full in this ruling. The applicants have urged us to strike out the record of appeal because according to them the notice of appeal contained in the record is irregular in form and substance. We have reproduced the notice that was filed by the 3rd respondent at the High Court of Kenya at Kabarnet.

As we have shown in the analysis of this ruling, an intended appellant who wishes to challenge a judgment of the High Court in an election petition for Member of Parliament, Senator or Governor is required to file a notice of appeal in this Court within seven days. Such an intended appellant should file the notice of appeal in the form prescribed in the schedule which we have also reproduced in this ruling. In deference to the Supreme Court in the Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Other (Supra) we must hold that a notice of appeal is a jurisdictional prerequisite without which an appeal does not lie.

Rule 8 of the rules which is couched in mandatory terms requires that a record of appeal shall contain amongst other things, the notice of appeal. It is the case of the applicants before us that the record of appeal filed is incompetent because it does not contain any or any valid notice of appeal.

We have considered the contention by the 3rd respondent that the document that was filed at the High Court of Kenya in Kabarnet was valid or in the alternative that the 3rd respondent was misled by staff of this Court’s Registry in Nakuru to file the document at the High Court in Kabarnet. That is a serious allegation but no evidence was furnished before us to establish it is a fact.

On the face of the document that was filed at the High Court at Kabarnet, it was the intention of the 3rd respondent to file the document at High Court in Kabarnet. That is what the document says on its face. The document also shows that it was lodged with the Deputy Registrar at the High Court in Kabarnet. It cannot therefore be said that the 3rd respondent at any time complied with filing a proper notice of appeal as required by the rules of this Court regarding election petition appeals where a notice of appeal must be filed at the Registry of the Court.

On the contention by the 3rd respondent that the applicants did not file the motions in time as provided by rule 19 of the rules, we agree with counsel for the applicants that the motions were filed within seven days after service of the record of appeal and it is only after service of the records that the applicants could challenge the validity of the record which contained an invalid notice of appeal. The motions were filed in time as required by the rules. We are satisfied that the record of appeal filed by the 3rd respondent which contains an invalid notice of appeal is irregular and incompetent and should be struck out. The appeal is accordingly struck out and we award costs of the application and of the appeal to the 1st and 2nd Respondents/Applicants as well as the 3rd Respondent/Applicant.

Those, then, are our orders.

Dated and delivered at Nakuru 31st day of May, 2018.

P. N. WAKI

………….………….…………………

JUDGE OF APPEAL

F. SICHALE

………………………………………..

JUDGE OF APPEAL

S. ole KANTAI

………………………..…………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR