[2017] KEHC 1736 (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. The subject of this application is whether the Petition herein should be struck out for reason that there is no certainty of who the Petitioner is and this is fatal to the Petition. It is submitted that the person who signed the Petition, who is named in the affidavit as the maker and who swore the affidavit and who testified in Court are different persons going by the names Nahashon Akunga, Nashon Akunga and Nahashon Gichana Akunga.

2. The Petition dated 4th September, 2017 was filed and signed by Nahashon Akunga. The letters “HA” in Nahashon were introduced by handwritten amendments so that before these amendments the Petitioner was Nashon. In the first page of the affidavit sworn in support of the petition, it is indicated that the Petitioner and the deponent of said affidavit is Nashon. In the jurat the name Nashon has been amended by hand to introduce “HA” and therefore the named deponent is Nahashon. It is of note that the Petitioner's name as per his National Identity Card is Nahashon.

3. Mr. Omogeni for the 3rd Respondent applied to court to strike out the petition. He relied on Rule 8(1) (a) of the Elections (Parliamentary and County Elections) Petition Rules, which provides that “a petition shall state the name and address of the petitioner.”Counsel argued that this provision is couched in mandatory terms and must be strictly enforced. Rule 8 (4) (b) provides that the petition must be supported by an affidavit of the Petitioner.

4. Counsel’s case was that the person who appeared before the Commissioner of Oaths to swear the affidavit and the person named in the first page of the affidavit as the deponent is different. He argued that the person who testified before the court produced his National Identity Card in which he is named Nahashon Gichana Akunga. Therefore, the person who filed the petition is different from the person who appeared before the court. The person who filed the petition and swore the affidavit in support is a stranger to these proceedings who must be struck off. The petition as it is is unverified and as such it cannot stand. The Petitioner had an obligation to present this petition by his true names and this omission was fatal to his pleadings.

5. Mr. Omwanza for the Petitioner opposed the application. It was his argument that the application is one which ought to have been brought before the trial commenced under Rule 15(2) of the Elections Petitions Rules. It is also an issue that arose during the trial for which the petitioner was cross examined. Therefore the 3rd Respondent’s application is tantamount to submissions on an issue that arose during trial which should be determined in the final judgment. In addition, the Petitioner did present his identity card during trial and proved that he is the proper Petitioner.

6. In his rejoinder, Mr. Omogeni conceded that Rule 15 (2) of the Elections Petitions Rules does disallow interlocutory applications if they could have been foreseen before the trial. However, he argued that the contradictions concerning the identity of the petitioner arose during cross examination and they were not satisfactorily clarified.

7. Ms. Karanja for the 1st and 2nd Respondents supported the 3rd Respondent’s application to have the petition struck out.

ANALYSIS

8. It is evident from the record that the petitioner is Nahashon, and that his name was erroneously mispelt as Nashon in the pleadings. The exclusion of “HA” in the name Nahashon was an inadvertent omission hence the attempts to correct the typo on several documents. That the corrections were not done to all the documents, they were handwritten and were not countersigned does not create an adverse inference of malice against the petitioner. Parties are not infallible and such unintended slips ought not to be elevated to serious mistakes that would warrant the striking out of a pleading or denial of audience by Court.

9. The key issue is to establish who the Petitioner is and whether the names as appearing in the Petition are prejudicial to the Respondents' case.

10. In the case of Hosea Mundui Kiplagat v Sammy Komen Mwaita & 2 others [2013] eKLR the Court stated;

“The description of a party in a petition, is a substantive and mandatory aspect that if omitted goes to the root of the Petition. A party to any court proceedings must be clearly described. However, in my view, the description of the Petitioner as 'Hosea Mundui Kiplagat' on one hand and 'Hosea Mundui Kiplagati' on the other hand, creates no doubt that it is one and the same person. It has not been argued that there was another contender in the elections known as 'Hosea Mundui Kiplagati' to whom this Petition might refer and therefore raise confusion as to the actual Petitioner. This again, is an error apparent on the face of the record that has no effect on the substance of the Petition and therefore, this ground does not suffice to render the Petition incompetent.”

11. Again in the case of Daniel Elius Mbiti v Philip Makau [2004] eKLR where in an appearance of a conflict of names like in our instant suit the Court stated;

“The Appellant is one Daniel Elius Mbiti. In the pleadings in the lower court, he was referred to as Daniel A. Mbiti or Daniel Mbithi. Infact the process server claims to have served Daniel Mbithi but not Mbiti. It is very crucial that the party's name to a suit be properly spelled. In the present case the names were quite different. Even the middle initial was A instead of E. It would have been possible that these were totally two different people. However, a look at the police abstract gives the appellants address as 1024 Machakos. It is the same address that appears in the purported vehicle purchase agreement dated 30. 5.01 that forms defence. In the circumstances, I do find that the appellants name was mispelled and he is the same person named in the lower court pleadings of Daniel Mbithi or Daniel A. Mbithi.”

12. Ultimately, there is no doubt about who the Petitioner is, or that the person who gave evidence in court is the same person who signed the documents and swore the affidavits. There was no intention to mislead and no mischief is discernible from the pleadings or the actions of the Petitioner. It was a mistake, which does not affect the pleadings or the Petitioner’s evidence on record.

13. It is my opinion that the application is a frivolous one and which does not serve to advance the case of the parties or aid the court in determining the issues in the matter but rather to vex and punish the Petitioner. Counsel for the applicant did admit that the application was prompted by the Petitioner’s application to strike out the 1st and 2nd Respondents' response. It was a retaliatory tactic, and it was his submission that if the court should strictly enforce the procedural rules against the 1st and 2nd Respondents by striking out their replying affidavit, then it should act in a similar manner as against the Petitioner.

14. In addition Rule 15 (2) of the Election Petitions Rules is very clear that only those unforeseeable interlocutory applications should be entertained after the trial has commenced. The amendments on the Petitioner's pleadings also appear on petition in the court record. In the supporting affidavit the Petitioner has annexed his National Identity Card. Therefore the 3rd Respondent could easily see the anomalies at the time the matter was instituted and it is not a new issue that arose during the trial. Raising it at this point when the Petitioner has already closed his case only buttresses my finding. Having failed to raise the issue before the trial, he is barred by Rule 15 (2) from filing the application at this point.

15. From the foregoing, it is manifestly clear in my mind, that the omission of “HA” in the documents complained of are inadvertent and an innocuous anomaly which can be easily remedied by making the necessary rectification.

16. Consequently, I find and hold that the application before Court has no merit and same is dismissed with costs to the Petitioner.

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

A. K. NDUNG'U

JUDGE