[2013] KESC 2 (KLR)

Odinga v Independent Electoral and Boundaries Commission & 3 others (Petition 5 of 2013) [2013] KESC 2 (KLR) (26 March 2013) (Ruling)

RAILA ODINGA V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & OTHERS[2013]eKLR

Neutral citation: [2013] KESC 2 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 5 of 2013

WM Mutunga, CJ & P, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & NS Ndungu, SCJJ

March 26, 2013

Between

Raila Odinga

Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Ahmed Issack Hassan

2nd Respondent

Uhuru Kenyatta

3rd Respondent

William Somoei Ruto

4th Respondent

Procedure in presidential election petitions is strictly timebound

The petitioner filed the application seeking orders directing the respondents to produce further documents in court within twenty–four hours of the making of the relevant orders by the court. The court held that any directions that were made by the court in regard to filing and service of any further affidavits or the giving of additional evidence should be made taking into account the strict constitutional timelines within which the petition challenging a presidential election should be determined.

Reported by Teddy Musiga

Election Law- presidential election petition – disputes arising out of a presidential election – procedure applicable to filing, service and production of documents – timelines in production of documents – whether the Supreme Court was time bound in the determination of the election petition - whether the filing, serving and production of further documents subsequent to filing the petition could interfere with the court’s timelines in the determination of the election petition - whether a pre-trial conference could have been used as a forum to make applications for production of further documents - Constitution of Kenya, 2010 article 140.

Brief facts Subsequent to filing of a presidential petition challenging the declaration of the results of the 2013 presidential election, the petitioner filed an application seeking orders for the court to direct the respondents to produce further documents in court within twenty – four hours after the court granted of the orders sought.

Issues

Whether the Supreme Court was time bound in the determination of the election petition.

Whether the filing, serving and production of further documents subsequent to filing the petition could interfere with the constitutional timelines applicable to the determination of the election petition by the court.

Whether a pre-trial conference could have been used as a forum to make applications for production of further documents.

Held 1. The Supreme Court was constitutionally time bound as follows;a. The presidential election petition was to be filed within seven days after the declaration of the presidential election results and the Supreme Court was to hear the petition within fourteen days after filing of the petition. The fourteen days began running immediately after the filing of the petition.b. The petitioner should serve the respondent within three days after filing the petition.c. The respondents were to file their response within three days after the filing of the petition.d. The pre-trial conference was to be held nine days after the filing of the petition.e. The court was also allocated three days to familiarize itself with the pleadings before scheduling the pre-trial conference.2. Intending petitioners ought to have utilized the seven day window period afforded by the Constitution following the declaration of the results to fully prepare their pleadings. Likewise, the respondents should have utilized the three days afforded to them to mount a comprehensive response to all allegations made in the petition.3. The purpose of a pre-trial conference was a preparatory forum to lay ground rules for the expeditious, fair and efficient disposal of petitions. It allowed the court either on its own motion or upon hearing the parties to make certain orders and issue directions to ensure a fair determination of the petition.4. Any directions that were made by the court in regard to filing and service of any further affidavits or the giving of additional evidence should have been made taking into account the strict constitutional timelines within which the petition should have been determined.5. The orders sought by the applicant could not be complied with within the strict constitutional timelines provided without seriously jeopardizing the hearing of the petition. Indeed, had the petitioner filed the application at the time of filing the petition and proceeded to serve the same upon the respondent, it would have been possible for the court to issue appropriate orders during the first mention of the petition.

Application dismissed.

Citations CasesNone referred toStatutesKenya Constitution of Kenya, 2010 articles 140(1)(2); 159(2)(d); 163(8) - (Interpreted)

Supreme Court (Presidential Election Petition) Rules, 2013 (Act No 7 of 2011 Sub Leg) rules 7, 8, 9, 10(1)(f); 11 - (Interpreted)

Supreme Court Act, 2011 (Act No 7 of 2011) section 31 - (Interpreted)

AdvocatesMr Oduol for the applicantMr Abdullahi for the respondent

Ruling

1This application is made by the petitioner in what was known as Petition No 5 before the order for consolidation made by this court on the March 25, 2013. The application was filed on the March 19, 2013 and served upon the respondents on diverse dates after the date of filing. The application seeks an order by the court directing the first respondents, their servants or agents to deliver to the court and to all the parties herein, within Twenty Four (24) Hours of making of the orders (emphasis ours) all information, electronic and hard copy, in relation to the just concluded presidential elections within their power, possession, control and/or custody and to facilitate a forensic audit of the first respondent’s IT System prior to the hearing of the petition.

2. The application also seeks an order by this court, directing the first respondent’s servants, contractors, agents and/or service providers including Kencall EPZ Limited, LANtech (Africa) Limited, Face Technologies, Next Technologies and Google Kenya Limited to deliver to the court and all the Parties herein within Twenty Four (24) Hours of making of the order, all information, electronic and hardcopy in relation to the just concluded presidential elections that are within their power, possession, control and/or custody and more specifically the information, devices and appliances listed to facilitate a forensic audit of the first respondent’s IT system prior to the hearing of this petition. The specific devices and appliances to be produced are listed in sub- paragraphs “a” to “u” of paragraph two (2) of the application.

3. The application was strenuously opposed by all the respondents herein including the petitioner in what was Petition No 3 before the order for consolidation. The application was however, supported by the petitioner in what was formerly Petition No 4. The grounds for opposition can be summarized as follows:1. The application was filed long after the filing and service of the petition on which the application is anchored. Coming at the pre-trial conference that is essentially meant to prepare for the actual hearing of the petition, the application is hopelessly out of time and can only derail the fair, effective and expeditious hearing and determination of the case by the court.2. The orders being sought by the applicant, if granted, would require the production of the entire IT Infrastructure of the first respondent (IEBC); a monumental undertaking which is impossible to effect in a span of twenty four hours.3. The orders being sought are directed not only to the first respondent, but also to its contractors. The latter are not parties to this petition and as such no order can be directed at them. The court should not issue extant orders whose reach affects persons that are not parties to this petition.4. The application is at best a mere fishing exercise in which the applicant is looking for evidence through the backdoor.5. The application is too wide and vague as the applicant both within the pleadings and oral submissions does not answer critical questions such as; who should undertake the forensic audit, how long the audit will take and which modalities are to be used to secure the delivery of all that is sought to be produced.6. The applicant amounts to an abuse of the process of court as the same application has been canvassed by the applicant at the High Court.

4. The applicant also strenuously argued in support of the application. The grounds in support and response can be summarized as follows:1. The application is an integral part of the petition as it seeks the production of information which is critical to the petitioner’s case.2. What is being asked for is not as monumental as the respondents make it to appear. The critical information being sought are the logs to be found in the central server system which is located in Nairobi and its environs.3. The information being sought will go towards providing the answers as to why the entire technology deployed in the management and conduct of the elections failed. Such answers will then provide proof of the applicant’s assertion that the whole system was designed by the first respondent to fail from the very beginning.

5. We have carefully considered the arguments of counsel for the applicant and respondents in support of and opposition to the application. It is important to note at the very outset that all the petitions as consolidated are to be heard and concluded within a strict and rigid time-frame. This time frame has been decreed by article 140 of the Constitution. Article 140(1) and (2) of theConstitution provide as follows:(1)A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. ( Emphasis ours).(2)Within fourteen days after the filing of petition, under clause (1), the Supreme Court shall hear and determine and determine the petition and its decision shall be final.

6. Pursuant to this constitutional edict, and pursuant to the powers conferred upon it by article 163(8) of theConstitution and section 31 of the Supreme Court Act, this court made and published The Supreme Court (PresidentialElection Petition) Rules, 2013. These Rules were meant to operationalise article 140 of the Constitution. The fourteen day time-limit within which the court must hear and determine an election petition begins to run immediately a party files a petition. This timeline is constitutional and not negotiable. Taking cue from theConstitution, rule 7 allows a petitioner a period of three days within which to serve the respondent after filing the petition. Rule 8 in turn allows the respondent(s) three days within which to file a response from the date of service of the petition. Rule 9 provides that there shall be a pre-trial conference nine days after the filing of the petition. The court is therefore also allocated three days within which to scrutinize and familiarize itself with the pleadings before scheduling the pre-trial conference. Pursuant to theseRules, the court scheduled the pre-trial conference to last for two days as from the March 25, 2013. Before, then, the court mentioned all these petitions on March 20, 2013. During the mention, the court issued a number of directions with which parties had to comply.

7. Ideally, an intending petitioner must utilize the seven day window afforded by theConstitution following the declaration of results to fully prepare his/her pleadings. Likewise, a respondent must utilize the three days afforded him/her by the Rules to mount a comprehensive response to all the allegations made in the petition. The purpose of the pre-trial conference is clearly set out in rule 10. Generally speaking, the pre-trial conference is a preparatory forum to lay the ground rules for the expeditious, fair and efficient disposal of the petition. It enables the court either on its own motion or upon hearing the parties, to make certain orders and issue directions to ensure a fair determination of the petition. Rule 11 provides that the court shall within two days of the pre-trial conference commence the hearing of the petition. While rule 10(1)(f) empowers the court to give directions in regard to the filing and service of any further affidavits or the giving of additional evidence, such directions cannot be made without taking into account the strict constitutional timelines within which the petition must be heard and disposed of.

8. Applying these principles to the application at hand, it becomes clear that the court cannot grant the orders sought without seriously jeopardizing the hearing of the petition. The application was filed on the March 19, 2013, four days after the filing of the petition. Although Mr Oduol for the applicant in urging the application stated that what was sought could be produced in a fairly short time. The body of the application indicates otherwise. As argued by the respondents, what the applicant seeks at this time in the day is the production of what amounts to the complete IT infrastructure of the first respondent. We are not persuaded that such an order as is sought by the applicant can be fully complied with before the hearing of the petition which is set to commence on the March 27, 2013. Indeed, if the petitioner had filed the notice of motion at the time of filing the petition and proceeded to serve the same upon the respondent, it would have been possible for the court to issue appropriate orders during the first mention of the petitions. The time for filing, service, hearing and determination of a petition under article 140 of theConstitution is indeed limited. The intention of the “framers” of theConstitution (if such a phrase is indeed applicable in the Kenyan context), must have been to hasten the determination of a presidential petition given the high stakes involved and the great public interest that would ensue from such a petition.

9. Our attention has repeatedly been drawn to the provisions of article 159 (2) (d) of theConstitution which obliges a court of law to administer justice without undue regard to procedural technicalities. The operative words are the ones we have rendered in bold. The article simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from courts of law. In the instant matter before us, we do not think that our insistence that parties adhere to the constitutionally decreed timelines amounts to paying undue regard to procedural technicalities. As a matter of fact, if the timelines amount to a procedural technicality; it is a constitutionally mandated technicality.

10. In his submissions while opposing the application, Mr Abdullahi contended that the application amounted to an abuse of the process of court since the same had been canvassed at the High Court by the applicant. Mr Oduol did not specifically respond to Mr Abdullahi’s assertion. We hasten to point out that if indeed the petitioner did canvass the application at the High Court and proceeded to file the same application before this court without disclosing the fate of the earlier application, such action would amount to a serious abuse of the process of court. As we have not made any finding of fact on this particular issue, we shall let it to rest.

11. In view of the foregoing reasons, the application is hereby declined. We make no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF MARCH, 2013. ....................DR WILLY MUTUNGACHIEF JUSTICE/PRESIDENT OF THE SUPREME COURT......................PK TUNOIJUSTICE OF THE SUPREME COURT.........................MK IBRAHIM......................JB OJWANGJUSTICE OF THE SUPREME COURT......................SC WANJALAJUSTICE OF THE SUPREME COURT......................NJOKI NDUNGUJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the original.REGISTRARSUPREME COURT OF KENYA