[2017] KEHC 1730 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ELECTION PETITION NO. 3 OF 2017

THE ELECTIONS

(PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017.

ELECTIONS (GENERAL) REGULATIONS, 2012 (AMENDED 2017)

IN THE MATTER OF THE ELECTION FOR THE WOMAN MEMBER OF THE NATIONAL ASSEMBLY OF KWALE COUNTY

ELECTION PETITION NO. 3 OF 2017

THE PETITION OF

OMARI JUMA MWAKAMOLE………........... PETITIONER

VERSUS

1. INDEPENDENT ELECTORAL & BOUNDARIES

COMMISSION …………………...........1ST RESPONDENT

2. COUNTY RETURNING OFFICER ......2ND RESPONDENT

3. HASSAN ZULEIKHA JUMA ……… 3RD RESPONDENT

RULING

1. On 6th September, 2017 the petitioner herein, Omari Juma Mwakamole filed a petition challenging the election of Hassan Zuleikha Juma as the winner of the elective post of Woman Representative, Kwale County, declared on 9th August, 2017 and duly gazetted thereafter. The 1st and 2nd respondents filed a response to the petition and a replying affidavit on 20th September, 2017. On 22nd September, 2017, the 3rd respondent duly filed a response to the election petition and a supporting affidavit.

2. The petition was listed for pre-trial directions on 9th October, 2017 but on the said date Counsel for the petitioner was absent for the reason that he was not served with the requisite notice to attend court. The Court fixed the petition for pre-trial directions on 13th October, 2017. On the said date the petitioner’s Counsel was absent and there was no documentation in the court file to show that he was served with a notice to attend court. Counsel for the respondents indicated to the court that they had perused the court file and noted that the petitioner had not deposited security for costs and as such pre-trial directions could not be taken. They sought time to move the court appropriately for dismissal of the petition.

3. On 16th October, 2017 the 1st and 2nd respondents moved the court through a certificate of urgency under the provisions of Section 78(2) of the Elections Act, Rules 8 and 13 of the Election (Parliamentary and County) Petition Rules, 2017, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law, for the following orders:-

i. That the petition of Omar Juma Mwakamole dated 4th September, 2017 and filed in this Honourable court on 5th September, 2017 (sic) challenging the election for the Woman Representative, Kwale County in the election conducted by the 1st respondent on 8th August, 2017 be struck out and/or dismissed for failure to comply with mandatory provisions of Section 78(2) of the Elections Act requiring deposit of security within ten (10) days from the date of institution of the petition;

ii. The petition as framed fails to comply with the mandatory provisions of Rule 8 of the Elections (Parliamentary and County) Petition Rules, 2017 requiring that that the results be pleaded in the petition and the petition as filed is materially and fatally defective and the same be struck out or dismissed; and

iii. The costs of this application be provided for.

4. The application is supported by the affidavit of Samuel Shardack Ouma Advocate and the grounds in support of it. On 17th October, 2017, the 3rd respondent similarly filed an application under certificate of urgency premised on the provisions of Section 78(2) of the Elections Act, Rules 8 and 13 of the Election (Parliamentary and County) Petition Rules 2017 and Order 51 rule 1 of the Civil Procedure Rules. She seeks the following orders:-

i. The petition of Omari Juma Mwakamole dated 4th September, 2017 and filed in this Honourable court on 6th September, 2017 challenging the election for the Woman Representative, Kwale County in the National Assembly in the elections conducted by the 1st respondent on 8th August, 2017 be struck out and/or be dismissed for failure to comply with mandatory provisions of section 78(2) of the Elections Act requiring deposit of security within ten (10) days from the date of the institution of the petition in the Election Court;

ii. The petition as framed fails to comply with the mandatory provisions of rule 8 of the Elections (Parliamentary and County) Petition Rules 2017 requiring that the results be pleaded in the petition and the petition as filed is materially and fatally defective and the same be struck out and/or dismissed with costs; and

iii. The costs of this application be provided for.

5. The application is supported by the affidavit of Japheth Asige Advocate and on the grounds on the face of it. The petitioner filed replying affidavits in response to the applications on 3rd November, 2017.

6. On 2nd November, 2017 the petitioner filed an application under certificate of urgency premised on the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010, Section 78(3) of the Elections Act, Rules 4(2), 5 and 19 of the Election (Parliamentary and County) Petition Rules, 2017; Order 50 rule 6 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. He seeks the following orders:-

i. Spent;

ii. That this Honourable court be pleased to extend the time for the petitioner to deposit the security for costs; and

iii. That the costs of this application be provided for.

7. The application is supported by the affidavit of Omar Juma Mwakamole and the grounds in support of it. Counsel for the respondents filed their grounds of opposition on 3rd November, 2017.

8. For ease of management of the 3 applications, the court gave directions for the application by the petitioner that seeks orders for extension of time to deposit security for costs to be heard first followed by the 2 applications that seek orders for the striking out and/or dismissal of the petition.

SUBMISSIONS

The Petitioner

9. Mr. Makaya, Learned Counsel for the petitioner, submitted that the court derives its jurisdiction from the Constitution and statutes. He stated that Article 259(9) of the Constitution and Section 59 of the Interpretation and General Provisions Act provide for powers of extension of time. He also cited the provisions of rule 19(1) of the Elections (Parliamentary and County) Petition rules, 2017 which provides that an election court may extend or limit the time within which an act shall be done. He added that rule 19(2) of the said rules limits the period within which a petition is required to be filed, heard and determined but the said limitation does not apply to deposit of security for costs.

10. To buttress the said argument, he relied on the case of Patrick Ngeta Kimanzi vs Marcus Mutua Muturi & 2 Others [2013] eKLR, which provides that jurisdiction to extend time for furnishing security for costs calls for an interpretation of Section 78 of the Elections Act. Counsel submitted that although Section 78 of the said Act is drafted in mandatory terms, it should be construed as a whole and not in parts. He submitted that when interpreting the provisions of Section 78 of the Elections Act, the intents and objects of the Constitution have to be considered as espoused in the case of Fatuma Zainabu Mohamed vs Ghati Dennitah and 10 Others [2013] eKLR where the court considered the deposit of security for costs as a procedural issue. Counsel stated that in the said case while distinguishing between it and the decision in Esposito Franco vs Amason Jeffa Kingi & 2 others, Civil Appeal No. 248 of 2008, the court determined that during the hearing of the latter case, the new Constitution had not been promulgated but the new provisions of the Elections Act ought to be considered within the objects and intents of the Constitution. Counsel further submitted that the court in the case of Esposito Franco vs Amason Jeffa Kingi & 2 others (supra) considered the various versions of interpretation of Section 78 of the Elections Act and noted that the guiding principle is to ensure that substantive justice is done in each case.

11. On the issue of failure to state the election results in the petition, Mr. Makaya implored this court to consider the case of Charles Ong’ondo Were vs Joseph Oyugi Magwanga & 2 Others [2013] eKLR where Maina J., considered the position before and after the Constitution 2010. Counsel submitted that the said judge distinguished the case of John Michael Njenga Mututho vs Jayne Njeri Kihara & 2 others [2008] eKLR by stating that the Constitution and the Elections Act relied upon then had been repealed. He stated that the court was guided by the principles of delivering substantive justice. He argued that failure to plead the election results in a petition was considered as having no prejudice on the respondents. Counsel further argued that in Caroline Mwelu Mwandiki vs Patrick Mweu Musimba and Others [2013] eKLR, the court held that no prejudice would be occasioned to the respondent and noted that Rules 4 and 5 of the Elections rules are a testament of Article 159(2)(d) of the Constitution of Kenya, 2010.

12. In urging the court to exercise its discretion judicially by allowing the petitioner’s application to extend the time for depositing of security for costs, Counsel stated that the petitioner was ready to deposit the said security within 24 hours, if he was granted the orders sought.

13. In responding to the applications filed by Counsel for the respondents seeking orders for the striking out and/or dismissal of the petition for failure by the petitioner to deposit security for costs, Mr. Makaya submitted that the applications should have been brought under the provisions of section 78(3) of the Elections Act and not under section 78(2) of the said Act.

2nd and 3rd respondents

14. Mr. Oduor, Learned Counsel held brief for Mr. Wafula for the 1st and 2nd respondents. He relied on their written submissions which he highlighted. He sought orders for the striking out of the petition for the failure by the petitioner to deposit security and failure to plead election results which omissions contravened the provisions of Rules 8 and 12 of the Election (Parliamentary and County) Petition Rules, 2017.

15. He stated that the petition was filed on 6th September, 2017 and by 16th September, 2017 security for costs at the sum of Kshs. 500,000/= should have been deposited. He added that security for costs is intended to deter busy bodies from filing petitions, thus a petitioner must show capability of paying costs by depositing security. He cited the case of Esposito Franco vs Amason Jeffa Kingi and 2 Others (supra) where the court held that the terms set for filing of election petitions are conditions precedent, non-compliance of which attracts the irreversible consequence of nullifying the petition. On the same issue, he also relied on the case of Fatuma Zainabu Mohammed vs Ghati Dennitah and 10 Others (supra). Counsel submitted that even where judicial discretion is sought, it should not occasion injustice or hardship resulting from accident, inadvertence, or excusable mistake or error. He contended that the reasons advanced in the petitioner’s affidavit are not valid. He prayed for the court not to extend time for depositing security for costs and to strike out and/or dismiss the petition.

16. On the issue of the petitioner's failure to plead results of the elections, Mr. Oduor submitted that it was a fatal omission as Rule 8 of the Elections (Parliamentary and County) Petition Rules, 2017 are very clear on what must be included in an election petition, hence there is no room for ambiguity. He stated that Rule 12(2) of the said rules is clear on what should be deposed to in an affidavit. As such a mere statement mentioning the person who won the elections is not adequate in the presence of the checklist provided. To augment his argument, he relied on the case of John Michael Njenga Mututho vs Jayne Njeri Kihara and 2 Other (supra) where the Court of Appeal made it abundantly clear on what should be included in an election petition. He submitted that in the said case the court held that if any of the particulars in the said rules is omitted, it would render the petition incurably defective. He submitted that the petition herein is incurably defective and it should be struck out with costs.

17. Mr. Oduor relied on the case of Hunker Trading Company Limited vs Elf Oil Kenya Limited [2010] eKLR, where the Court of Appeal held that courts must insist on full compliance with past rules and precedents which are O2 compliant so as to maintain consistency and certainty.

3rd respondent

18. Mr. Asige, Learned Counsel for the 3rd respondent adopted his written submissions filed on 14th November, 2017. He urged the court to read the written submissions by the Counsel for the 1st and 2nd respondents and those he had filed as one, for they hold a common position.

19. He submitted that the provisions of section 78(2) of the Elections Act, 2011 are couched in mandatory terms, in that a petitioner has to deposit security for costs within 10 days of filing of a petition. He added that the 3rd respondent has also applied for the striking out of the petition for the reason that the respondent failed to disclose the results of the elections in the pleadings.

20. Counsel submitted that 2 months down the line, the petitioner had not deposited security for costs in court so as to give him the leeway for him to seek leave of the court to deem the deposit filed out of time, as timeously deposited. The court would then have considered exercising equitable jurisdiction to allow the late deposit of security for costs. Mr. Asige stated that the petitioner’s request to be given 24 hours to deposit security for costs was aimed at giving this court a condition by bargaining on the timelines for the deposit of the said security. He argued that the petitioner’s failure to deposit security denies the respondents something to fall back to, in the event of him losing the petition.

21. He further submitted that the court’s exercise of jurisdiction in the present circumstances is very restricted and sufficient grounds must be laid for the court’s indulgence. The court was referred to paragraph 4 of the petitioner's affidavit in support of his application for extension of time where he states that he did not have Kshs. 500,000/= to deposit as security for costs. Mr. Asige interpreted this to mean that the petitioner knew that he was required to deposit security for costs within 10 days of his filing of the petition. He argued that it was necessary for the petitioner to exhibit medical evidence through his affidavit to show that he was taken ill and the nature of his illness. He stated that the reasons given by the petitioner were insufficient to enable this court to exercise discretion in his favour. He relied on the provisions of Sections 107, 109 and 112 of the Evidence Act in stating that the petitioner had failed to prove that he was unwell.

22. On the issue of the failure to plead results, Counsel for the 3rd respondent submitted that the results of the election are not reflected anywhere in the pleadings or in the petitioner’s affidavit. He contended that the petitioner is a political idler and busy body who is not desirous to having the elections nullified. Mr. Asige indicated that the jurisdiction to determine an electoral dispute is dependent on time. He cited the case of Lemanken Aramat vs Harun Metamei Lempaka and 2 Others [2014] eKLR where the Supreme Court of Kenya observed that electoral dispute resolution mechanisms in Kenya are marked by certain special features. He indicated that a condition set in respect to electoral disputes, is the strict adherence to the timelines prescribed by the Constitution and electoral laws.

23. In concluding his submissions, Counsel for the 3rd respondent urged this court to find that the petitioner’s application for extension of time to deposit security was triggered by the applications made by the respondents for dismissal or striking out of the petition, thus the petitioner is gambling on his chances of being allowed to proceed on with the petition.

24. Mr. Asige prayed for the 3rd respondent’s application dated 16th October, 2017 to be allowed and for the petitioner’s application dated 2nd November, 2017 to be dismissed with costs.

25. In response to the submissions by the respondents’ Counsel, Mr. Makaya submitted that the cases of Esposito Franco vs Amason Jeffa Kingi and 2 Others (supra) and John Njenga Michael Mututho vs Jayne Njeri Kihara and 2 Others (supra) were decided on the basis of the previous Constitution and former Elections Act. He urged this court to be guided by the case of Kazungu Kambi and Another vs Nelly Ilongo, County Returning Officer, Kilifi County and 3 Others [2017] eKLR, where the court found that the issues therein were of public interest and enlarged time for deposit of security for costs.

26. He contended that the Constitution and the electoral laws provide that leave of the court should be sought first before depositing security for costs out of time. He prayed for the petitioner’s application to be allowed and for those by the respondents to be dismissed.

ANALYSIS AND DETERMINATION

27. The issues for determination are:-

i. If the court has jurisdiction to extend time for deposit of security for costs;

ii. Whether an election petition in which deposit of security for costs has not been made should be struck out and/or dismissed;

iii. If failure to plead election results in an election petition renders it fatally defective.

EXTENSION OF TIME TO DEPOSIT SECURITY FOR COSTS AND STRIKING OUT AND/OR DISMISSAL OF THE PETITION.

28. Mr. Makaya submitted that the applications filed by Counsel for the respondents should have been anchored under the provisions of section 78(3) and not section 78(2) of the Elections Act. Section 78 of the Elections Act 2011, provides as follows:-

“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) ……………………………………..................................................

(b) five hundred thousand shillings, in the case of a petition as against a Member of Parliament or a County Governor;

(c) ……………………..........................................................................

(3) 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 election court for an order to dismiss the petition and for the payment of the respondent’s costs;

(4) The costs of hearing and deciding an application under subsection (3) shall be paid as ordered by the election court, or if no order is made, shall form part of the general costs of the petition;

(5)An election court that releases the security for costs deposited under this section shall release the security after hearing all the parties before the release of the security.” (emphasis added).

29. The fact that the respondents' applications seeking the striking out and/or dismissal of the petition are premised on the provisions of section 78(2) instead of 78(3) of the Elections Act, I hold that is a technicality that is curable under the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010.

30. There is no dearth of decided cases on whether courts have jurisdiction to extend time for deposit of security for costs or not. These cases range from those decided before the Constitution of Kenya, 2010 was promulgated and those decided in the years 2013 and 2017. In the case of James Kirimi Karubi vs Independent Electoral and Boundaries Commission and Another [2017] eKLR, which involved a Senatorial petition, the court found that the petitioner failed to put forward an excuse for non – compliance with the requirement for deposit of security for costs and took no steps to seek enlargement of time to make the payment. The judge dismissed the petition for non-compliance with prescribed mandatory requirements. Similar views were held in Evans Nyambaso Zedekiah and Another vs Independent Electoral and Boundaries Commission and 2 Others [2013] eKLR and Anastasia Wanjiru vs IEBC and Shakila Abdalla Mohammed [2013] eKLR where the courts held that the law is clear that no further proceedings shall be entertained by the court where the petitioner has defaulted in depositing security for costs.

31. The other school of thought that supports the extension of time for deposit of security for costs is espoused in the cases of Samuel Kazungu Kambi and Another vs Nelly Ilingo, County Returning Officer, Kilifi and 3 Others [2017] eKLR where W. Korir J., extended time for deposit of security for costs after considering that the election of the Governor of Kilifi County was a matter of public interest and the lethargy of the 1st petitioner in the matter of depositing security should be overlooked so that the substantive issues raised in the petition can be addressed.

32. In the case cited by Counsel for the petitioner of Patrick Ngeta Kimanzi vs Maruro Mutua vs 2 Others [2013] eKLR, the court was of the view that the fact that the respondent may apply to dismiss the petition under section 78(3) of the Elections Act negates the mandatory nature of sub-section 1 thereof and implies that there is a window for the exercise of judicial discretion to dismiss the matter. The court in the case of Fatuma Zainabu Mohamed vs Ghatti Denittah and 10 Others [2013] eKLR also held that section 78(3) does not bar the hearing of an interlocutory application for extension of time to make deposit of security for costs. The court further held 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.

33. I do take note that the foregoing decisions were rendered by courts of concurrent jurisdiction and are therefore of persuasive value to this court. My understanding of the provisions of Section 78(1) of the Elections Act is that it sets in mandatory terms the timelines for deposit of security as being within 10 days from the date of filing of a petition. The legislature did not make it mandatory for the deposit of security for costs to be made at the same time as when a petition is filed. This therefore gives a petitioner a grace period of 10 days from the time of filing the petition to the time for deposit of security for costs. This essentially factors in any exogenous factors that may come into play to hinder the deposit of security for costs as at the time of filing the petition. This therefore means that a petitioner who fails to exploit the 10 days window of opportunity granted under the provisions of section 78(1) of the Elections Act runs afoul of the law. Situations may arise where a deposit of security for costs has been made but not captured on the court records, such a petitioner would have the opportunity to address the court on the said issue under the provisions of section 78(3) of the Elections Act, 2011.

34. Counsel for the petitioner relied on the provisions of Article 259(9) of the Constitution in arguing that it confers on this court the powers to extend time for doing a certain act, such as the extension of time for deposit of security for costs. The marginal note with regard to the provisions of Article 259 reads “Construing this constitution” Article 259(9) of the Constitution provides as under:-

“if any person or state organ has authority under this constitution to extend a period of time prescribed by this constitution, the authority may be exercised either before or after the end of the period, unless a contrary intention is expressly mentioned in the provision conferring authority.”

35. The above provisions are explicit in that they apply to extension of time “in respect to persons or state organs who have authority to extend a period of time prescribed by the Constitution”. The foregoing provisions must be read together with the provisions of Article 87(1) of the Constitution which stipulate that Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes. It is clear that the time specified for deposit of security for costs is not a matter prescribed under the Constitution but one provided by the provisions of section 78(1) of the Elections Act. Extension of time for the deposit of security for costs is therefore not a matter that is governed by the provisions of Article 259(9) of the Constitution. Courts derive jurisdiction from either the Constitution or statutes, in the applications before me, jurisdiction to entertain them is conferred on this court by the Elections Act and rules thereof. The provisions of Section 59 of the Interpretation and General Provisions Act that were cited by Counsel for the petitioner are not applicable in the present circumstances as the provisions of Section 78(1) of the Elections Act are couched in mandatory terms.

36. Counsel for the petitioner urged the Court to invoke the provisions of Article 159(2)(d) of the Constitution to cure the delay on the petitioner’s part in failing to deposit security for costs in court. In Nicholas Kiptoo Arap Korir Salat vs IEBC & 6 Others, Kiage J.A stated as follows with regard to the provisions of Section 159(2)(d) of the Constitution:-

"...........I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines...."

37. A petitioner who fails to deposit security for costs puts on hold progression of the petition as no further proceedings can be heard on the petition and by so doing interferes with the timelines set for hearing of election petitions. It is therefore my finding that failure to deposit security within the timelines allowed is not an error that is curable under the provisions of Article 159 (2) (d) of the Constitution. Although Counsel for petitioner has cited the provisions of Rule 19(1) of the Election (Parliamentary and County) Petition Rules, 2017 which give a court powers to exercise its discretion under the rules or as ordered by the court, I hold that the said provisions are subservient to the provisions of Section 78 of the Elections Act. Rule 13 of the Election (Parliamentary and County) Petition Rules, 2017 borrows its provisions from section 78 of the Elections Act by stating that a petitioner shall deposit security for the payment of costs within 10 days of the filing of a petition in compliance with section 78(2) and (c) of the Act. It is therefore clear that section 78 and rule 13 of the Election (Parliamentary and County) Petition Rules leave no room for ambiguity on the non-elasticity of the timelines for deposit of security for costs.

38. Counsel for the 3rd respondent aptly cited the case of Lemanken Aramat vs Harun Meitamei Lempaka and 2 Others (supra) where the Supreme Court stated as follows:-

“69. 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 timelines prescribed by the Constitution and the electoral law. The jurisdiction of the Court to hear and determine electoral disputes is inherently tied to the issue of time, and breach of this strict scheme of time removes the dispute from the jurisdiction of the Court. This recognition is already well recorded in this Court's decisions in the Joho case and the Mary Wambui case.

134. The critical question, clearly, rests on the relationship between timelines as laid down in the electoral law, and the issue of jurisdiction. In our Ruling in the Raila Odinga case, on 3rd April, 2013 we expunged a new affidavit from the record, for non-compliance with timelines, in these terms:

“.....The parties have a duty to ensure they comply with their respective timelines, and the Court must adhere to its own. There must be a fair and level playing field so that no party or the Court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party, or the Court, as a result of omissions, or inadvertences which were foreseeable or could have been avoided.” (emphasis added).

39. In this instance, the petitioner filed the petition on 6th September, 2017 and went to sleep. He only awakened on receipt of the applications by the respondents seeking orders for the court to strike out and/or dismiss his petition. By then, almost 2 months had elapsed since he filed the petition. This in essence shows that the petitioner was not serious in setting the petition in motion. As Mr. Asige so well put it, the petitioner is a busy body and a political idler and if I may add, a spoilsport. His laidback approach to the petition shows a petitioner who was not convinced of the course he had charted. I say this as Section 78(3) of the Elections Act is specific that if no deposit for security for costs is made, that no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition.Until such a time that courts superior to this are moved by litigants to render themselves on the issue of extension of time for deposit of security for costs, High Court decisions on the same will remain diverse.

40. The foregoing analysis coupled by the submissions of the Counsel for the respondents and the authorities cited, show that the petitioner’s application seeking extension of time to deposit security for costs should not be granted. The said application is hereby dismissed. The converse means that paragraph (i) of the applications by the 1st, 2nd and 3rd respondents are hereby allowed.

FAILURE TO PLEAD ELECTION RESULTS

41. The Elections (Parliamentary and County) Petition Rules, 2017 stem from the powers conferred on parliament under the provisions of the Elections Act pursuant to Article 87(1) of the Constitution of Kenya, 2010.

42. Rule 8 of the Elections (Parliamentary and County) Petition Rules, 2017 provides as follows:-

1. An election petition shall state –

a. The name and address of the petitioner;

b. The date when the election in dispute was conducted;

c. The results of the election, if any, and however declared;

d. The date of the declaration of the results of the election;

e. The grounds on which the petition is presented; and

f. The name and address of the advocate, if any, for the petitioner which shall be the address for service.” (emphasis added).

43. Rule 12 (2) thereof stipulates as follows:-

“An affidavit in support of a petition under sub-rule (1) shall state –

a. The name and address of the deponent;

b. The date when the election in dispute was conducted;

c. The results of the election, if any, however declared;

d. The date of the declaration of the results of the election;

e. The grounds on which the petition is presented; and

f. The name and address of the advocate.” (emphasis added)

44. The High Court has held varied opinions on whether failure to plead election results in a petition is fatal or not. In Evans Nyambaso Zedekiah and Another vs Independent Electoral and Boundaries Commission and 2 Others [2013] eKLR, Mbaraka Issa Kombo vs Independent Electoral and 3Others [2017] eKLR; and Jimmy Mkala Kazungu vs Independent Electoral and Boundaries Commission and 2 Others [2017] eKLR, Judges Sitati, P.J. Otieno, and Thande, respectively found the petitions that were before them fatally defective for failure by the petitioners to plead election results.

45. Some Courts have upheld petitions where petitioners failed to plead the election results. Cases in point are Charles Ong’ondo vs Magwanga and 2 Others [2013] eKLR, Caroline Mwelu Mwandiki vs Patrick Mweu Simba and Others [2013] eKLR, Samuel Kazungu Kambi and Another vs Independent Electoral and Boundaries Commission and 3 Others [2017] eKLR and Wavinya Ndeti and Another vs Independent Electoral and Boundaries Commission and 2 Others [2017] eKLR.

46. This Court after considering the provisions of Rules 8 and 12(2) of the Elections (Parliamentary and County) Petition Rules, 2017 finds that they are couched in mandatory terms. Rule 8 gives a step by step guideline on what must be included in an election petition and so does rule 12(2). The said rules are aimed at giving petitions a degree of uniformity, consistency and to rationalise the manner in which pleadings are drafted, or else there would be all manner of variants whereby important elements that ought to be included in election petitions and affidavits in support thereof would be excluded. In my view, the rules were not drafted to give room to petitioners to pick and choose the information that they should include in a petition or what to exclude. They are very simple "Do it yourself (DIY)" guidelines which are meant to be followed by even laymen in the drafting of petitions.

47. The results of any election forms the basis upon which a petitioner brings his complaint. When election results are not pleaded, the petitioner omits a critical aspect of his complaint from his pleadings. In essence, it leaves the respondent to go fishing for information which should have been availed by the petitioner from the outset. With the burden of proof in election petitions being placed at a higher pedestal than that of a balance of probabilities, the election results being challenged form the centerpoint from which all the other issues of complaint stem from; and upon which a petitioner builds his/her case to establish why the candidate who was declared the winner, should not have been so declared.

48. The issue of whether failure to plead results is fatal to a petition was addressed by the Court of Appeal in the case cited by Counsel for the 1st and 2nd respondents of John Michael Njenga Mututho vs Jayne Njeri Kihara and 2 Others [2008] eKLR where the said Court stated thus:-

“What would have happened where, as here, the results as envisaged by regulation 40 are not included in the petition. In our view, an essential element would be missing. The petition shall be incomplete as the basis for any complaint will be absent. Whatever complaint a petitioner may be having about the election may be regarded as having no legal basis. The law has set out what a petition should contain and if any of the matters supposed to be included is omitted then the petition would be incurably defective.”

49. Counsel for the petitioner relied on the provisions of Article 159(2)(d) of the Constitution and Raila Odinga and Others vs Independent Electoral and Boundaries Commission and 3 Others, Nairobi petition No. 5 of 2013 [2013] eKLR where the Supreme court stated in part that:-

“….in the circumstances of the said case no injustice had been or would be occasioned by failure by the petitioner to set out the results of the election. The fact that election disputes are sui genesis governed by a special regime of rules does not exonerate the court of its prime obligation and indeed reason for its existence that of delivering substantive justice.”

50. It is worth mentioning that in the above case, the Supreme Court also stated as follows:-

“Our attention has repeatedly been drawn to the provisions of the Constitution which obliges a court of law to administer justice without undue regard to procedural technicalities. The article simply means that courts of law should not pay attention to procedural requirements at the expense of substantive justice. It wasnever meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the courts of law.”(emphasis added).

51. My understanding of the above decision is that Article 159(2)(d) of the Constitution is not a tonic for curing all maladies that befall litigants. The issue that is before this court is not just one of a procedural lapse on the part of the petitioner but is a substantive issue that goes to the innermost core of the petition. Failure to disclose results renders an election petition defective as the respondents are short changed by not having the full facts of the dispute.

52. Gitari J., when considering an application for dismissal of a petition for failure by the petitioner to disclose election results in Martha Wangari Karua and Another vs Independent Electoral and Boundaries Commission and 3 Others [2017] eKLR relied on the Supreme Court decision of Moses Mwicigi and 14 others vs IEBC and 5 Others[2016] eKLR, where the said court stated thus:-

“65. this court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation. In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality. The conventional wisdom, indeed, is that procedure is the handmaiden of justice. Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent. Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule of procedure, could undermine the cause of justice. Hence the pertinence of Article 159(2)(d) of the Constitution, which proclaims that....…....This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the courts.”

53. It is evident that the Supreme Court in the above decision was alive to the fact that not all errors or inadvertences of a procedural nature would give a court discretion to invoke the provisions of Article 159(2)(d) of the Constitution, when such errors go to the substance of litigation. Having considered the issue of failure to plead election results, it is my finding that the petition is lacking in substance and form and for the said reason it is beyond salvage and cannot form the subject of a trial.

54. The sum total of the failure by the petitioner to deposit security for costs and to plead the election results in his petition renders the petition incurably defective and irredeemable. Section 78 of the Elections Act provides for dismissal and not the striking out of a petition where deposit of security for costs is not made. The only consequence therefore is to dismiss the petition which I hereby do.

55. I award costs of the application and the petition to the respondents capped at the sum of Kshs. 1 Million for each respondent.

It is so ordered.

DELIVERED, DATED and SIGNED at MOMBASA on this 7th day of December, 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

Mr. Makaya holding brief for Mr. Kithi for the petitioner

Mr. Wafula for the 1st and 2nd respondents

Mr. Asige for the 3rd respondent

Mr. Oliver Musundi – Court Assistant