[2017] KEHC 1909 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ELECTION PETITION NO. 4 OF 2017

IN THE MATTER OF THE ELECTION ACT NO. 24 OF 2011 LAWS OF KENYA AND THE ELECTION (GENERAL) REGULATIONS, 2012 AND ELECTIONS (PARLIAMENTARY AND COUNTY) PETITION RULES 2017

AND

IN THE MATTER OF THE ELECTIONS OF WOMEN REPRESENTATIVE FOR KISII COUNTY, COUNTY NO. 45 HELD ON 8TH AUGUST 2017

BETWEEN

NAHASHON AKUNGA ............................ PETITIONER/RESPONDENT

VERSUS

THE INDEPENDENT ELECTORAL AND

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

ROBERTY ISAAC SIDNEY NAMULUNGU ................. 2ND RESPONDENT

HON. JANET ONG’ERA ............................ 3RD RESPONDENT

RULING

1. Mr. Omwanza for the Petitioner has made an oral application under Rules 11 (1), (2), (4), (5) and (8) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 (hereinafter referred to as the Elections Petitions Rules). His complaint is that the 1st and 2nd Respondents being the Independent Electoral and Boundaries Commission and the Returning Officer for Kisii County respectively have not filed a proper response to the petition as required by Rule 11 (1) of the Elections Petitions Rules. What they have filed is a replying affidavit by the 2nd Respondent to which the Oaths and Statutory Declarations Act Cap. 15 applies. This document is different from the response contemplated by Rule 11 (2) of the Elections Petitions Rules which should be in the Form 4 set out in the First Schedule. It was the Petitioner’s counsel’s prayer that pursuant to Rule 11 (8), the 1st and 2nd Respondents should not be allowed to appear or act as parties in the proceedings. Further, the 1st and 2nd Respondent’s replying affidavit on record and their cross examination of the Petitioner’s witnesses be adjudged as irregular and accordingly, expunged from the record.

2. Counsel argued that a response is akin to a defence in civil proceedings. Its purpose is to notify the Petitioners what the Respondent’s response is. Rule 11(1) vests discretion on the Respondents to file a response. However, where they opt to file one it ought to be in the format prescribed. Sub-rule (5) of Rule 11 requires such a response to be in respect of each claim made in the petition. Counsel argued that the court should apply the rules equally as against the Petitioner and the Respondent. It had already dismissed two applications by strictly enforcing the statutory timelines. It must apply the same principles when determining the present application, and deny the 1st and 2nd Respondents audience for want of a response. Counsel relied on Bashir Ali v Mohammed [2013] eKLRwhere the Respondent had only filed an affidavit. In G.V. Sreerama v Reddy & Another v Returning Officers & Others India Supreme Court Civil Appeal No. 6269 of 2008 the court held that the provisions of the law must be complied with. In Rose Akinyi Buyu v IEBC & Others [2014] eKLRthe court held that a response must be filed within 7 days of service of the petition. This issue though raised in the course of the hearing, was determined by the court. In Hon Ole Keiwa v A.M. Akiwumi & Others [2008] eKLRthe court held that strangers to a suit have no right of audience.

3. Ms Karanja for the 1st and 2nd Respondents opposed the application. She submitted that the Elections Act stood higher in terms of hierarchy to the Rules. Therefore the court is bound to determine matters without undue regard to procedural technicalities as per Section 80 (1) (d) of the Act. Counsel argued that the replying affidavit filed by the said Respondents is a valid response although it is wanting in form. It answers paragraph by paragraph each allegation raised in the petition. Addressing the Petitioner’s counsel’s reference to the already determined application, Ms. Karanja submitted that the applications were not addressed to the 1st and 2nd Respondents. She further argued that it was rather late in the day to be making such an application.

4. Mr. Omogeni for the 3rd Respondent argued that the court cannot strictly enforce the legislative requirements on filing of documents as requested by the Applicant. It is obligated by Article 159 (2) (d) of the Constitution to do substantive justice without undue regard to procedural technicalities. Whether the document is a replying affidavit or a response is technical. Substantive justice is about looking at the affidavit and interrogating the issues. According to Counsel, the 1st and 2nd Respondents have filed an affidavit that responds to the issues raised in the petition.

5. Counsel further argued that the 3rd Respondent has on his part filed a response and an additional affidavit. It can, if need be, adopt the 2nd Respondent’s affidavit as part of its documents. In any event it is not stated in the Elections Act that the only way to respond to a Petition is by way of a response. The court has a duty vested on it by section 80 (1) of the Elections Act to determine all the matters before it without undue regard to procedural technicalities.

ANALYSIS

6. The manner of response to an election petition is provided for under Rule 11 of the Elections Petitions Rules, 2017 as hereunder-

(1)upon being served with a petition in accordance with rule 10, a respondent may oppose the petition by filing and serving a response to an election petition within seven days.

(2)the response to a petition under sub-rule (1) shall be in Form 4 set out in the First Schedule.

(3)……..

(4) ………..

(5)a response to a petition shall respond to each claim made in the petition.

(6)……….

(7)………….

(8)a respondent who has not filed a response to a petition as required under this rule shall not be allowed to appear or act as a party in the proceedings of the petition.

7. It was common ground that the 1st and 2nd Respondents response to the petition was not in the format set out under Rule 11 (2) above. The issue for determination is whether this omission renders the document incurably defective and a result the 1st and 2nd Respondents should be denied audience by this court in terms of Rule 11 (8).

8. Section 72 of the Interpretation and General Provisions Act, Cap. 2 provides that-

“Save as is otherwise expressly provided, whenever a form is prescribed by written law, an instrument or document which purports to be in that form shall not be void by reason of a deviation therefrom which does not affect the substance of the instrument or document, or which is not calculated to mislead.”

9. Under section 72 above, the rebuttable presumption is that the requirements of form are purely regulatory rather than mandatory. A deviation from the form is not fatal and does not render a document invalid or void unless firstly, there is a provision expressly making the requirement mandatory, secondly such deviation affects the substantive content of document, or thirdly it was a deliberate omission intended to mislead.

10. I have had occasion to consider the replying affidavit filed. The same answers to all the issues raised in the petition paragraph by paragraph. The fundamental question is whether the form of the reply as presented prejudices any of the parties.

11. It is not lost on me that the Petitioner has already closed his case. The issue being raised now came to the notice of the Petitioner when the reply was served way before the pre-trial conference in this matter was held. Rule 15(2) of the Elections (Parliamentary and County Elections) Petitions Rules clearly provides;

“An election Court shall not allow any interlocutory application to be made on conclusion of the pre-trial conference, if the interlocutory application could have, by its nature, been brought before the commencement of the hearing of the petition.”

12. No reason is given why the application is raised this belatedly. There is an element of surprise and ambush on the adverse party. The timing prejudices the 1st and 2nd Respondents. This is against the tenets of a fair trial.

13. It is trite Law that the striking our of a suit/pleading is a draconian step and is a discretion that ought to be exercised very sparingly.

14. I am of the view that the circumstances of this case require the Court to rise to its higher calling to do substantive justice to the parties.

15. To quote from Raila Odinga and Others v IEBC and 3 others(2017) eKLR;

“The Court should not allow the prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties. The principle of merit, however in our opinion, bears no meaning cast-in-stone and which suits all situations of dispute resolution. On the contrary, the Court as an agency of processes of justice is called upon to appreciate all the relevant circumstances and the requirements of a particular case and conscientiously determine the best cause.”

16. When I appreciate all the relevant circumstances and the requirement of the instant suit, I am persuaded that the best cause is to invoke article 159 2 (d) of the Constitution, Rule 4(1) & (2) and Rule 5(1) of the Elections (Parliamentary and County Elections) Petitions Rules 2017. Rule 4(1) provides;

“The objective of these Rules is to facilitate the just, expeditious, proportionate and affordable resolution of elections petitions.”

17. Sub rule (2) places an obligation on the court to give effect to this objective when exercising its powers under the Constitution, the Elections Act or interpreting any of the Rules. Rule 5 (1) further vests in the court wide discretion to determine the effect of any failure to comply with the Rules guided by Article 159 (2) (d) of the Constitution. The said Article 159 (2) (d) enjoins the court, when exercising the judicial authority vested on it by the Constitution, to dispense substantive justice without giving undue regard to procedural technicalities. This requirement is restated at section 80 (1) (d) of the Elections Act, Cap. 24.

18. The 1st and 2nd Respondents’ replying affidavit states the election which is being disputed, the grounds on which the replying affidavit is premised, and a prayer that the 3rd Respondent was duly elected and that the election was valid. This replying affidavit does not differ to the Form 4 at the First Schedule in terms of the substantive content. In addition, the Petitioner did not in any way suggest that there was an intention to mislead.

19. A party who has appeared before court wishing to be heard should not be turned away unless with very good reason. (See D. T. Dobie & Company (Kenya) Limited Vs Muchina [1982] KLR, 1 and Geminia Insurance Co Limited vs Kennedy Otieno Onyango [2005] eKLR).

20. It is my finding that the objection of the Applicant is a technicality which does not go to the root of the matter. The Applicant has not shown any prejudice it has suffered as a result of the omission by the 1st and 2nd Respondents. Their case was clear and was understood by all the other parties. In fact the trial has already commenced and significant steps made with the Petitioner’s case being concluded. Conversely, if the replying affidavit was to be struck out as requested by the applicant, the 1st and 2nd Respondents would be condemned unheard. The court must exercise its discretion in so far as possible to sustain rather than strike out a pleading. The obligation of the Court to hear all the relevant parties is more vital in this case being an election matter which also bears a public interest element. This Court is guided by the case of Dickson Karaba Vs John Ngata Kariuki & Another [2010] eKLRwhere the court in exercising its inherent powers to save a defective petition held-

“Inherent power is a residual power which may be used upon a necessary event and when it is just and equitable to do so in a particular case to ensure the observance of the due process of the law or prevent vexation or oppression or to do justice between parties and secure a fair trial between them. It is not intended to displace a party of his matured right which is likely to result in an injustice. I think, striking out of a petition is outside the inherent jurisdiction of the High Court and it cannot be exercised to aid a party who has not suffered any prejudice or injustice due to the acts or omission of another party.”

21. The Applicant also argued that the Court should allow this application for the reason that it has previously disallowed his applications. I am alive to the principle of equality of arms. However, this submission is in my view, without merit. The Court does not issue orders or directions to please the parties but rather considers each application on its merits. A decision to allow or disallow an application is made based on the Law and the facts pertaining rather than to satisfy the parties or to appear to be impartial or balanced. Its fidelity is to the law rather than the individual interests of the parties. Therefore this application cannot be allowed for the reason that all the Applicant’s previous applications have been disallowed or the Court’s decisions have not gone his way.

22. For the above reasons the application is hereby disallowed. The 1st and 2nd Respondents' replying affidavit sworn on 18th September, 2017 is deemed as regular and will be treated as a response under Rule 11(2) of the Elections Petitions Rules. The Petitioner was not completely without merit in bringing the application. I award costs to the Petitioner.

Dated, Signed and Delivered in Kisii this 6th day of December, 2017.

A. K. NDUNG'U

JUDGE