[2017] KEHC 9515 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ELECTION PETITION NO. 18 OF 2017

TOM ONYANGO AGIMBA....................................…PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

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

THE RETURNING OFFICER,

EMBAKASI WEST CONSTITUENCY.......................2ND RESPONDENT

GEORGE THEURI.......................................................3RD RESPONDENT

RULING

[1]The Petitioner herein, Tom Onyango Agimba,was one of the 8 candidates who contested the Embakasi West Parliamentary seat in the August 8, 2017General Elections. He filed this Petition challenging the election of the 3rd Respondent, George Theurias the Member of Parliament for Embakasi West Constituency, on the grounds that the election was marred with irregularities and improprieties as well as lack of transparency in counting, tabulation and collation of the votes cast. The Petition was filed on 6 September 2017,and hence was lodged within the 28 day period provided for in Article 87(2) of the Constitution of Kenya, 2010as read with Section 78 of the Election Act, No. 24 of 2011, granted that the result was announced on 10 August 2017.

[2]Having disposed of the Preliminary Objection that was raised by the 3rd Respondent by its Ruling dated 19 October 2017 the Court fixed this Petition for pre-trial conference on 24 October 2017 in accordance with Rule 15 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 (hereafter, the Elections Petitions Rules) and, upon noting that there was no receipt on the file evidencing the payment by the Petitioner of the requisite deposit as security for costs, the pre-trial conference was adjourned to 31 October 2017 for the Petitioner to avail proof of payment, for it was all along his contention that he had made the requisite payment. On the 31 October 2017, the Petitioner instead of providing proof of payment of the deposit for costs, filed the Notice of Motion dated 30 October 2017 under Certificate of Urgency, pursuant to Article 25 of the Constitution of Kenya, 2010,Order 50 Rule 6 of the Civil Procedure Rules and Rule 19 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, for orders that:

[a]The application be certified as urgent, service thereof be dispensed with and the same be heard ex-parte in the first instance;

[b]The Petitioner be given leave to forward to Court the requisite deposit, out of time, more specifically within ninety six (96) hours hereof;

[c]The Court be at liberty to issue further or other orders as it may deem appropriate.

[3]The application was premised on the ground that it had come to the Petitioner's notice that the deposit for security in the matter at hand had not been forwarded to Court, due to reasons beyond his control; and that "...the Petitioner intends to deposit the monies within ninety six (96) hours." It was further the contention of the Petitioner that he stands to suffer irreparable harm in the event that this application is not determined in his favour. In support of the application, the Petitioner relied on his affidavit sworn on 30 October 2017, in which he averred that he participated in the General Elections of 8 August 2017 as the candidate for the Orange Democratic Party for the Embakasi West ConstituencyParliamentary seat, in respect of which he filed the instant Petition on 6 September 2017.

[4]It was further the averment of the Petitioner that a client, one Dr. Mohammed,was to deposit Kshs. 500,000/= in the Judiciary Account and forward the receipt to his firm, and that when it was noted that the deposit receipt was not in the court file, he carried out a search in his office and thereupon confirmed that he had no such receipt in his possession. He then inquired from Dr. Mohammed and it was then that he got to learn that the monies had not been deposited as had been anticipated, hence the instant application. He averred that the Respondents will not be prejudiced, but actually protected by the payment of the security deposit, in respect of which he sought extension of time. He exhibited as Annexure "TA 1" a letter dated 13 September 2017 in proof of his averments.

[5]The application was urged on 31 October 2017, and in so doing, the Petitioner reiterated his averments in the Supporting Affidavit and cited the provisions of Article 159 of the Constitution, Rules 4 and 19 of the Elections (Parliamentary and County Elections) Rules, as being the provisions that clothe the Court with the powers to grant the extension of time as sought. He relied on Election Petition (Kisii) No.6 of 2013: Fatuma Zainabu Mohamed vs. Ghati Dennitah [2013] eKLR and Election Petition (Kitale) No. 5 of 2013: John Lokitare Lodinyo vs. Mark Lomunokol and 2 Others [2013] eKLR as relevant instances in which election courts allowed the furnishing of security deposit out of time.

[6]On behalf of the 1st and 2nd Respondents, Mr. Kitur opposed the application on the basis of the Grounds of Opposition filed herein on 31 October 2017, namely:

[a]That the application is frivolous, devoid of merits, misconceived, vexatious and bad in law and is otherwise an abuse of the process of the court;

[b]That the application offends the provisions of Section 78 of the Elections Act;

[c]That the Petitioner has on several occasions in Court confirmed that he had deposited security for costs;

[d]That the Petitioner is guilty of undue delay and of misleading the Court and the parties that he had deposited the security for costs;

[e]That it is in the interest of justice that the application be dismissed with costs to the 1st and 2nd Respondents.

[7]It was accordingly the submission of Mr. Kitur that the issue of deposit of security is not something to be taken lightly, given the provisions of Section 78 of the Election Act. He urged the Court to view with disfavour, the conduct of the Petitioner in knowingly misleading the Court that he had made the deposit when he had not; and to dismiss both the application and the Petition itself for failure to comply with the clear provisions of Section 78 of the Election Act.

[8]Mr. Maloba, Learned Counsel for the 3rd Respondent also opposed the application. Stressing that the objective of Section 78 of the Elections Act is to prohibit vexatious proceedings and protect innocent parties from exposure to unnecessary costs, he argued that Rule 19 of the Elections (Parliamentary and County Elections) Petitions Rules cannot override the substantive provisions of Section 78 of the Elections Act. He submitted therefore that although some election courts have in certain circumstances extended the time for payment of security deposit, the Petitioner herein is not entitled to the exercise of the Court's discretion on account of his inequitable conduct. He invoked the maxim "He who comes to equity must come with clean hands"in urging the Court to strike out the Petition with costs to the 3rd Respondent.

[9]Mr. Amalembareinforced the submissions of Mr. Malobaby citing, inter alia, the case of Evans Nyambaso Zedekiah & Another vs. Independent Electoral and Boundaries Commission [2013] eKLR on the obligation to comply with timelines set out in the Elections Act; and that security for costs is a substantive and not just a procedural issue. He thus urged the Court to find that the this Petition is incompetent for failure by the Petitioner to deposit security for costs and to have it struck out with costs under Section 78(3) of the Elections Act.

[10]In reply to the Respondents' submissions, Mr. Agimba beseeched the Court to consider the openness, candour and good faith adverted to in his Supporting Affidavit and to view his application favourably. He refuted any insinuation of unbecoming conduct on his part. He reiterated his posturing that the Court does have the discretion to grant extension of time to enable compliance with Section 78of the Elections Act. He accordingly urged that his application be allowed in the interest of justice.

[11]The constitutional foundation for the election dispute resolution legal regime is to be found in Article 87 of the Constitution. It provides that:

(1)Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.

(2)Petitions concerning an election, other than presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.

(3)Service of a petition may be direct or by advertisement in a newspaper with national circulation.

[12]Pursuant to Article 87(1)aforestated, Parliament enacted the Elections Act, No. 24 of 2011. That Act provides as follows in Section 78thereof:

(1)A petitioner shall deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petition under this Part.

(2)A person who presents a petition to challenge an election shall deposit--

a)one million shillings, in the case of a petition against a presidential candidate;

b)five hundred thousand shillings, in the case of a petition against a member of parliament or a county governor; or

c)one hundred thousand shillings in the case of a petition against a member of a county assembly.

[13]What then is the rationale for this provision? The Court of Appeal in the case of Esposito Franco vs. Amazon KingiJeffa& 2 others Civil Appeal Application No. 248 of 2008 had occasion to consider this very question and expressed itself as follows:

“We are in agreement with the respondents that the requirement that an aggrieved party remits security for costs upon filing an Election petition is to restrict the would be vexatious litigants from coming to court and ensure that the party who comes to court is serious and will be able to pay the costs in the event he is required to do so.”

[14]Clearly therefore, the intention of the legislature was to cure the mischief of vexatious litigants and ward off busybodies from diverting the scarce judicial resources from more deserving court business, as well as ensuring the protection of the rights of the respondents to recompense by way of costs in the event that the petition turns out unsuccessful. This legislative intent was well explicated by Majanja, J in Election Petition (Machakos) No. 8 of 2012: Patrick Ngeta Kimanzi vs. Marcus Mutua Muluvi & 2 Others thus:

"Security for costs ensures that the respondent is not left without a recompense for any costs or charges payable to him. The duty of the court is therefore to create a level playing ground for all the parties involved, in this case, the proportionality of the right of the petitioner to access justice vi-a-vis the respondent's right to have security for any costs that may be owed to him and not to have vexatious proceedings brought against him."

[15]Accordingly, Regulation 13 of the Elections Petitions Rules, in furtherance of the provisions of Section 78 of the Elections Act, stipulates that:

(l) Within ten days of the filing of a petition, a petitioner shall deposit security for the payment of costs in compliance with section 78 (2) (b) and (c) of the Act.

(2) The security for costs deposited under sub-rule (1) shall -

(a) be paid to the Registrar;

(b) be for the payment of costs, charges or expenses payable by the petitioner; and

(c) subject to the directions of an election court, be vested in, and drawn upon from time to time by, the Registrar for the purposes for which security is required.

(3) The Registrar shall--

(a) issue a receipt for the deposit under this rule;

(b) shall file the duplicate of the receipt issued under paragraph (a) in a record kept by him or her;

(c) keep a record of deposits in which shall be entered from time to time the amount of a deposit and the petition to which the deposit relates;

(d) allow any person concerned with the petition to examine the record of deposits.

[16]In the premises, the Petition having been filed on 6 September 2017, the Petitioner had up to 16 September 2017 to pay the deposit for costs and obtain a receipt from the Registrar for the payment in accordance with Rule 13 aforementioned. Needless to say that there was no compliance in this respect by the Petitioner; and where such is the case, Section 78(3) of the Elections Act stipulates that:

"Where a petitioner does not deposit security as required by this section, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition and the respondent may apply to the court for an order to dismiss the petition and for the payment of the respondent's costs."

[17]In the light of the foregoing, the twin issues that present themselves for determination herein are:

[a] Whether the Court has the discretion to extend time for the payment of the security deposit, as sought herein by the Petitioner; and if so,

[b] Whether in the circumstances of this case, that discretion ought to be exercised in the Petitioner's favour.

[a]On the Discretion to Extend Time

[18]Whereas one of the provisions pursuant to which the Court was approached is Order 50 Rule 6 of the Civil Procedure Rule (erroneously reflected in the Notice of Motion as Rule (6) of the Civil Procedure Rules), which provides for extension of time, it is trite that election petitions are causes sui generis, and are therefore governed by a special regime of law that is neither civil nor criminal in nature. The Supreme Court in Moses Masika Wetangula vs. Musikari Nazi Kombo & 2 Others [2015] eKLRmade this exposition thus:

The description of election petitions as causes sui generis, is in every respect apposite. An election petition is a suit instituted for the purpose of contesting the validity of an election, or disputing the return of a candidate, or claiming that the return of a candidate is vitiated on the grounds of lack of qualification, corrupt practices, irregularity or other factor. Such petitions rest on private political or other motivations, coalescing with broad public and local interests; they teeter in their regulatory framework from the civil to the criminal mechanisms; and they cut across a plurality of dispute-settlement typologies.

[19]The Supreme Court of India expressed a similar view in Jyoti Basu& Others v. Debi Ghosal & Others [1982] AIR 983; [1982] SCR (3) 318, and this is one of the decisions that was cited with approval in the Moses Wetangula Petition (Supra). In that case, the Supreme Court of India held that:

"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 straight jacket.”

[20]Similarly, inMurathe v. Macharia [2008] 2 KLR (EP) 244at 249,the Court of Appeal held that:

“Election petitions are governed by a special self-contained regime and the civil procedure rules were inapplicable except where expressly stated. Moreover, ... the Civil Procedure Rules was a piece of subsidiary legislation promulgated by the Rules Committee for the purposes of the Civil Procedure Act and under the rules of statutory interpretation; they could not override the express provisions of an Act of Parliament."

[21]Accordingly, I would find and hold thatOrder 50 Rule 6of theCivil Procedure Rulesthat was relied on herein by the Plaintiff, is not helpful, except perhaps by way of analogy only. The foregoing notwithstanding, it is manifest that the application was also filed underRule 19of theElection Petitions Rules, which does provide for extension of time, and is therefore competently before the Court. That Rule reads:

(1)Where any act or omission is to be done within such time as may be prescribed in these Rules or ordered by an elections court, the election court may, for the purposes of ensuring that injustice is not done to any party, extend or limit the time within which the act or omission shall be done with such conditions as may be necessary even where the period prescribed or ordered by the Court may have expired.

(2)Sub-rule (1) shall not apply in relation to the period within which a petition is required to be filed, heard or determined."

[22]IndeedRule 4of theElection Petitions Rulesis explicit that the objective of the Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions.Rule 5(1) of the Elections (Parliamentary and County Elections) Petitions Rules further reinforces the foregoing provisions by stating that:

"The effect of any failure to comply with these Rules shall be determined at the Court's discretion in accordance with the provisions of Article 159(2)(d) of the Constitution."

[23]More importantly, it is a constitutional imperative, by dint ofArticle 159(2)(d)ofthe Constitutionaforementioned, that justice be administered without undue regard to procedural technicalities; in connection with which the Supreme Court stated thus inRaila Odinga and Others v Independent Electoral and Boundaries Commission and 3 others [2013] eKLR:

“The essence of that [Article 159(2)(d)] is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This 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 the processes of justice, is called upon to appreciate all the relevant circumstances and the requirements of a particular case and conscientiously determine the best course.”

[24]Similarly, in Lamanken Aramat vs. Harun Maitamei Lempaka, SC Petition No. 5 of 2014,the Supreme Court was of the view that:

“ACourt dealing with a question of procedure, where jurisdiction is not expressly limited in scope – as in the case of Articles 87(2) and 105(1)(a) of the Constitution – may exercise a discretion to ensure that any procedural failing that lends itself to cure under Article 159, is cured. We agree with learned counsel that certain procedural shortfalls may not have a bearing on the judicial power (jurisdiction) to consider a particular matter. In most cases, procedural shortcomings will only affect the competence of the cause before a Court, without in any way affecting that Court’s jurisdiction to entertain it. A Court so placed, taking into account the relevant facts and circumstances, may cure such a defect; and the Constitution requires such an exercise of discretion in matters of a technical character.”

[25]Hence, whereas it was the argument of both Mr. MalobaandMr. Amalemba that the Court lacks the power to extend time under Rule 19of the Election Petition Rules for the reason that that provision is limited to the timelines set by the Rules as opposed to timelines that are within the purview of the Elections Act under which the Rules were made; and that Rule 19 cannot override the provisions of Section 78 of the Elections Act, the effect of Rule 13, to my mind, is to subject the 10 day period for the payment of security deposit to the provisions of Rule 19 and therefore make it amenable to extension by the Court. Accordingly, I take the view that the Court does have the discretion to extend time for the payment of security deposit under Rule 19 of the Election Petition Rules; and that failure to deposit security is not necessarily fatal to a petition. This was the decision reached in the Fatuma Zainabu Mohamed Petition (supra)in which the Election Court, in a similar application, reached the following conclusion:

"I consider that if section 78(3) of the Elections Act were construed as not allowing for any good cause an extension of time to deposit security for costs, it would unreasonably restrict the right to approach the court for a determination whether one has been elected to hold office, inconsistently with the constitutional right under Article 38(3)(c) of the Constitution for “every adult citizen has the right without unreasonable restrictions to be a candidate for public office or office within a political party of which the citizen is a member and if elected to hold office”.Accordingly, I find that the time prescribed for deposit of security for costs is a matter of procedure rather than substance of the right to petition the court on election dispute, which is granted by the Constitution itself."

[26] In the premises, I would, with due respect, diverge from the position taken in Evans Nyambasi Zedekiah & Another vs. Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR,that was relied on by the Respondents.

[b]On whether, in the circumstances of this case, the Courtshould exercise its discretion to extend time in the Petitioner's favour.

[27]"Judicial Discretion" is defined in Black's law Dictionary, Ninth Edition,to mean:

"The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a courts power to act or not act when a litigant is not entitled to demand the act as a matter of right."

Thus, it is now trite that for the Court to exercise its discretion in favour of a party, sufficient cause must be shown to the Court's satisfaction. This was acknowledged by the Election Court in the Fatuma Petition (supra) thus:

"...the procedure for application to court for an order to dismiss the petition provides an avenue for the Petitioner to show cause why the petition should not be dismissed on the ground of default of security by seeking leave of court to lodge the security out of time. The discretion to grant such leave must, of course, be exercised judicially for good cause shown..."

[28]In the Notice of Motion dated 30 October 2017, the prayer of the Petitioner was that he "...be given leave to forward to Court the requisite deposit out of time, more specifically within ninety six (96) hours hereof..."And in his Supporting Affidavit, the Petitioner averred that his client, one Dr. Mohammed was to deposit Kshs. 500,000/= in the Judiciary Account and forward the requisite receipt to his firm; and that when the matter came up on 24 October 2017, he went and made a search in his office and it came to his attention that the receipt was not there. He further averred that on enquiring from the said Dr. Mohammed it was discovered that the monies had not been deposited. He filed a copy of a letter dated 13 September 2017. That letter states as follows in part:

"We refer to the above matter.

Kindly, yet urgently deposit KSHS. 500,000/= at the KCB Milimani Courts before end of business today, using the following details;

ACCOUNT NAME: ELECTION PETITION NO. 18 OF 2017

BENEFICIARY: TOM ONYANGO AGIMBA

Do forward receipt of the same to our office for our record purposes.

We trust that the foregoing is in order..."

[29]I have given due consideration to this explanation from the standpoint of Article 159(2)(d) of the Constitution, Sections 78 of the Election Act, and Rules 4, 5 and 19 of the Elections Petition Rules as well as the submissions made herein by the Petitioner and Counsel for the Respondents. I am however far from convinced that a plausible explanation for non-compliance has been proffered herein. Here are my reasons for coming to this conclusion:

[a] The Supporting Affidavit and the annexure thereto merely show that the firm of Agimba & Associates instructed one Dr. Mohammed, in his capacity as a client to deposit some Kshs.500,000/= to the Judiciary Account at KCB Milimani Courts. Whereas it could be surmised that the Kshs. 500,000/= was for purposes of security for costs in this Petition, the obligation was on the Petitioner in person not only to ensure such deposit was made, but also that the deposit slip was presented to the Registrar in compliance with Section 78(1)of the Elections Act and Rule 13of the Elections Petitions Rules and to obtain a receipt for the payment. Thus, even if the funds had been deposited as instructed, the Petitioner cannot escape censure for having sat back without ensuring full compliance with the aforesaid provisions.

[b] Secondly, and more importantly, the letter aforementioned does not provide an explanation as to why the deposit was not paid. The Petitioner's Supporting Affidavit does not explain why Dr. Mohammed was obliged to make the security deposit on the Petitioner's behalf, or whether he was agreeable to doing so. It does not explain whether the said Dr. Mohammed was in a position to make the payment by end of business that day as intimated in the letter dated 13 September 2017 or whether he had given the Petitioner any assurance that the funds would be deposited as instructed in that letter. An affidavit by the said Dr.Mohammed, which would have shed more light on the matter and hopefully offered an explanation as to why the deposit was not paid, was not deemed necessary by the Petitioner, yet he had between 24 October 2017,when the pre-trial conference was adjourned on account of this omission and 31 October 2017 when the instant application was filed, to provide the Court with a satisfactory explanation for his non-compliance. In effect therefore, there is absolutely no explanation as to why the security deposit was not paid by the Petitioner within the 10 days timeline, or at all.

[c] Thirdly, while urging this application, and while fully aware of the non-payment, the Petitioner informed the Court that the security deposit had been forwarded to another source. He did not, in his affidavit provide particulars in that regard, or evidence to demonstrate such payment. Indeed, in his Supporting Affidavit he averred that he confirmed from Dr. Mohammed that the monies "had not been deposited" and not that the monies had been paid to a wrong account. Indeed, it is inexplicable why he did not deem it appropriate to immediately cause the default to be rectified by promptly channeling the funds to the correct destination.

[d]Fourthly, having participated in the August 8, 2017 General Elections and lost, the Petitioner was well aware that, if he was intent on challenging the election of the 3rd Respondent, he would be required to make a deposit of Kshs. 500,000/= as security for costs. He was well aware that he ought to have made the deposit on 6 September 2017 when he filed his Petition; and in any case not later than 16 September, 2017. He waited until 13 September 2017 to give instructions to his client to make the deposit and did not take care to confirm thereafter that the payment had indeed been made, until 24 October 2017 when this matter was raised by the Court at the pre-trial conference.

[e] Last but not least, the Petitioner is no ordinary litigant. He is a lawyer by profession, practising in the name and style of Agimba &Associates Advocates. He has indeed been conducting this matter in person. It cannot be gainsaid therefore that, as a lawyer, he is well versed in the law generally, and is particularly acquainted with the fact that time is of the essence in the resolution of electoral disputes. He is on record, while defending the 3rdRespondent's Preliminary Objection, as having stressed the need for compliance with the timelines for filing the Petition, which is why he was in the Court Registry shortly before midnight on the 6 September 2017. He ought to have employed the same zeal and diligence in ensuring that the lodgement of security deposit within the prescribed time, knowing full well that any extension thereof could only be granted by the Court for justifiable causeand not as a matter of course.

[30In effect, what the Petitioner is now telling the Court is that whereasthe Elections Act and the Rules thereunder have given timelines for the payment of security deposit, the Court should nevertheless ignore those provisions and allow him extension of time, simply by waving Articles 25 and 159(2)(d) of the Constitution without any explanation at all. I would disagree; for what the Petitioner's conduct betrays is an extremely lackadaisical attitude, if not a callous trifling with and disdain for the whole object of Section 78 of the Elections Act and Rule 13of the Elections Petitions Rules, and indeed the whole concept of timelines in electoral dispute resolution. In asking for extension of time for a further 96 hours, the Petitioner is in effect saying he is not in funds; which is the mischief that Section 78 was intended to cure in the first place. In this situation, Article 159(2)(d) of the Constitution would not avail him. Thus, I would agree entirely with the expressions of the Election Court in Election Petition (Kitale) No.11 of 2013: Charles Maywa Chedotum & Another vs. Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR that:

"...Article 159(2)(d) of the Constitution ought to be interpreted in plain language with a purposeful approach. It should not be overstretched to the extent that any obligation imposed by the law with regard to procedure becomes a mere insignificant technicality. Haphazard application of the Article would open the field of justice to gross abuse. The Article was not intended to be a“coup d'etat”of procedural rules which are created and exist for the purposes of ensuring an orderly and efficient system of the management and administration of justice...Quite clearly, Article 159(2)(d) of the Constitution was not invented as a panacea for the indolence and the lack of due diligence often displayed by some litigants in preparation of their cases. "

[31] Moreover, it is instructive that in both of the cases referred to by the Petitioner, due diligence was exercised by the respective petitioners and the requisite deposit paid, albeit after the prescribed period; such that by the time their applications were being argued, the security deposit had been paid. Additionally, satisfactory explanation was offered for the late payment. For instance, in Kisii Petition No. 6 of 2013: Fatuma Zainabu Mohamed vs. Ghati Dennitah & Others [2013] eKLR, the Petitioner's explanation, as set out in her supporting affidavit to her application for extension of time, was that she sold her vehicle to raise the security money and was paid Kshs.680,000/= but was robbed of the money on the same day and was consequently unable to deliver the money to her advocates for them to pay the deposit within time. She produced a bundle of documents including an agreement for sale of her motor vehicle, log book and medical treatment note in support of the application. It is also significant that the application for extension of time was made only 6 days after the lapse of the 10 day period aforementioned. Similarly, in the Charles Maywa Chedotum Petition (supra), the Petition was filed on 10 April, 2013 and the deposit for costs was paid on 29 April, 2013. Hence, whereas the payment of the deposit was made outside the prescribed time, the payment had nevertheless been made by the time the extension of time was sought.

[32] In the light of the foregoing, it is my finding that no justifiable cause has been shown by the Petitioner either for hisnon-compliance or for the extension of time sought by his Notice of Motion dated 30 October 2017. His said application fails and is hereby dismissed with costs. The consequence thereof, pursuant to Section 78(3) of the Elections Act, would be to stay these proceedings pending an application for dismissal. That provision states thus:

"Where a petitioner does not deposit security as required by this section, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition and the respondent may apply to the court for an order to dismiss the petition and for the payment of the respondent's costs."

[33] I note however that in resisting the Petitioner's application, Counsel for the Respondents made an oral application for the dismissal of the Petition; and therefore the question to pose is whether that suffices for the purposes of Section 78(3) of the Elections Act. Whereas a "petition" is defined in Section 2 of the Elections Act to mean "...an application to the election court under the Constitution or under this Act", an "application" has not been similarly defined. Accordingly, from the standpoint of Rule 4of the Elections Petitions Rules, which requires that election petitions be disposed of in a just, expeditious, proportionate and affordable manner, I would act on the Respondents' oral application for the dismissal of this Petition for want of compliance with the provisions of Section 78 of the Elections Act,on the basis of the arguments already advanced herein in opposition to the Petitioner's application and my findings herein above.

[34] The foregoing being my view of the matter, I would dismiss the Petition that was filed herein by Tom Onyango Agimba on 6 September 2017with costs to the Respondents, pursuant to Section 78(3)of the Elections Act, 2011. It is further directed that a Certificate of this determination be and is hereby issued to the Independent Electoral and Boundaries Commission, and that a notification thereof be given to the Speaker of the National Assembly in accordance with Section 86(1) of the Elections Act, 2011.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2017.

OLGA SEWE

JUDGE