[2023] KEHC 23508 (KLR)

Okatch v Independent Electoral and Boundaries Commission & 4 others; Orange Democratic Movement Party & another (Interested Parties) (Civil Appeal E292 of 2023) [2023] KEHC 23508 (KLR) (Civ) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23508 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E292 of 2023

AN Ongeri, J

October 11, 2023

Between

Millicent Akinyi Okatch

Appellant

and

Independent Electoral and Boundaries Commission

1st Respondent

Fatuma Abdiwahid Abey

2nd Respondent

Malyum Ali Abdi

3rd Respondent

Agnes Wambui Njeri

4th Respondent

Fathiya Abdilahi Mohamed

5th Respondent

and

Orange Democratic Movement Party

Interested Party

Clerk Of The National Assembly

Interested Party

Ruling

1. The 2nd respondent raised a notice of preliminary objection dated 6/10/2023 to the appellant’s record of appeal dated 9/5/2023 on the following grounds;i.That the appellant’s record of appeal dated 9th May, 2023 and filed virtually on 10th May 2023, the memorandum of appeal having been filed virtually on 14th April, 2023 offends the statutory timelines of twenty-one (21) days for filing a record of appeal as stipulated under Rule 34, sub rule 6 of the Elections (Parliamentary and County Elections) Petition Rules, 2017. ii.That the record of appeal offends clear provisions of the law.iii.That on any other or further ground to be adduced at the hearing thereof.iv.That the appeal herein is frivolous and an abuse of the court process.

2. The interested parties and the respondents supported the preliminary objection.

3. The Appellant filed grounds of opposition opposing the preliminary Objection and an Application dated 9th October 2023 seeking leave to have the Record of appeal deemed to have been filed within the time stipulated.

4. The Respondents and the interested parties submitted that the record of appeal was filed outside the time stipulated by Rule 34(6) of the Election Petitions (Parliamentary and County Elections Petition Rules 2017 and therefore the appeal herein should be struck out.

5. Further that the record of appeal does not contain certified copies of the proceedings and the decree of the trial court and that the same is defective and incompetent.

6. The Respondents submitted that Rule 34(6) of the Elections (Parliamentary and County elections) Petition Rules is couched in mandatory terms and the same is not negotiable.

7. The appellant opposed the preliminary objection and filed grounds of opposition and submissions in which he stated that time belongs to the court and further that the court has a discretion to extend time for filing the record of appeal.

8. The appellant further submitted that failure to file a decree is not fatal.

9. The appellant relied on the case of Lorna Chambai and 4 others vs IEBC and 2 others [2018] eKLR where Hon. Lady Justice Mumbi (as she then was) said that non-compliance with Rule 34 (6) was not fatal and she deemed the record of appeal filed 5 days after the expiry of the 21 days as properly filed.

10. The parties filed written submissions which they highlighted in court. I have considered the rival submission of both parties. The issues for determination in this preliminary objection are as follows;i.Whether the preliminary objection is competent.ii.Whether this appeal should be struck out.iii.Who pays the costs of the preliminary objection?

11. On the issue as to whether this appeal is competent, counsel for the appellant submitted that a lot of the issues alluded to by the respondents and interested parties are factual.

12. The Appellant heavily relied on the case of Lorna Chambai and 4 others vs IEBC and 2 others(supra) where the court extended time in similar circumstances. The appellants in that case were the petitioners before the lower court. They had filed their petition challenging the party lists submitted by the 2nd respondent to the 1st respondent which were contained in the Gazette Notice dated 28th August 2017.

13. Their contention before the court was that the nomination of the interested parties was in breach of Articles 177 of the Constitution as well as sections 34, 35, 36 and 37 of the Elections Act, as well as Regulations 54 and 55 thereof.

14. The issue before the Lorna (supra)case was that the said lists did not include persons with disabilities or marginalized groups, and that the 1st respondent had failed to supervise the nominations as required under the law.

15. The appeal before this court is also seeking for orders that the Interested Party’s nominated members on the revised list dated 5th September 2022 as submitted to the 1st is valid and that the same be upheld and further that the Appellant herein be deemed as a duly nominated member to the Nairobi County Assembly under the gender top up category representing the 1st Interested Party.

16. I find that the Authority relied upon by the Appellant emanated from the High Court and the same is persuasive but not binding on this court.

17. I find that it is not in dispute that the record of appeal was filed 5 days after the expiry of the 21 days granted under the rules.

18. I rely on the Supreme Court case of Christopher Odhiambo Karan v David Ouma Ochieng & 2 others [2018] eKLR where the Supreme court held as follows;“This Court has severally emphasized the importance of timelines in the electoral disputes resolution in several of its decisions including the Aramat case at paragraph 69 where we stated thus:“We have to note that the electoral process and the electoral dispute – resolution mechanism in Kenya are marked by certain special features. A condition set in respect of electoral disputes, is the strict adherence to the time lines prescribed in the Constitution and the electoral law”.And at paragraph 78:“We are not, with respect, in agreement with the learned counsel for the 1st respondent that there is any conflict at all in this case, between the electoral requirements of timelines on the one hand, and values of the Constitution on the other hand. It is clear to us that compliance with timelines, is itself a Constitutional principle one that reinforces the Constitutional values attendant upon the electoral process”

19. I find that the timelines allowed by the constitution and statute for handling of Election Petitions cannot be extended. The Supreme Court further stated in the said case ofChristopher Odhiambo Karan v David Ouma Ochieng & 2 others ( supra) as follows;“This Court has, in previous decisions, held that election petitions are sui generis, they are neither criminal nor civil. In Moses Masika Wetangula v Musikari Nazi Kombo & 2 others, S.C Pet. 12 of 2014; [2015] eKLR(Moses Masika case), at paragraph 157 we thus stated as follows:157]“…..It is now an indelible principle of law that the proceedings before an election Court are sui generis. They are neither criminal, nor civil. The parameters of this jurisdiction are set in statute (the Elections Act). As such, while determining an election matter, a Court acts only within the terms of the statute, as guided by the Constitution. This approach is in keeping with the stand taken by the Supreme Court of India in Jyoti Basu & Others v. Debi Ghosal & Others 1982 AIR 983:“An Election petition is not an action at Common Law, nor in Equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to election law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, the Court is put in a strait jacket.”

20. I accordingly find that this preliminary objection is merited.

21. On the issue as to whether the appeal should be struck out, I find that the answer is in the affirmative.

22. I find that it is not in dispute that the Record of Appeal does not contain certified copies of the proceedings or the Decree, apart from being filed out of time.

23. I accordingly strike out the appeal at this stage for being filed outside the time stipulated for filing the same without leave of the court and for being incompetent for failure to contain certified proceedings and a copy of the decree from the lower court.

24. The Appellant’s attempt to circumvent the preliminary objection by filing an Application to cure the defects has been overtaken by events.

25. The Application ought to have been filed prior to the filing of the Record of appeal.

26. On the issue of costs, in an attempt to put this matter to rest, I direct that each party bears its own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF OCTOBER, 2023. A. N. ONGERIJUDGE