[2017] KEHC 1411 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT LODWAR

ELECTION PETITION NO. 3 OF 2017

PATRICK LOSIKE LOKAIMOE:::::::::::::::::::::::::PETITIONER

VERSUS

DANIEL EPOGO NANOK::::::::::::::::::::::::1ST RESPONDENT

PATRICK WANYAMA WANYONYI:::::::::2ND RESPONDENT

THE INDEPENDENT ELECTRAL &

BOUNDARIES COMMISSION:::::::::::::::3RD RESPONDENT

RULING

By an Application dated 17th October, 2017, the 1st Respondent/ Applicant, has applied to this court under Rules 4, 6, 17(c), 20, 22 and 37 of the Election (Parliamentary and County Elections) Petition Rules 2017, S. 75 of Elections Act, Sections 1A, 1B, 1C, 3 and 3A of the Civil Procedure Act, Sections 3 and 4 of the Judicature Act, and lastly Article 159 of the Constitution. The applicant basically seeks 2 prayers: -

i. That the venue for the hearing of this Petition be anywhere else other than Turkana County including Lodwar High Court.

ii. That in the alternative, the applicant’s plea for change of venue from Lodwar to wherever else be forwarded to the Chief Justice without staying the proceedings herein.

The application of the 1st Respondent/Applicant is opposed by both the Petitioner and the other Respondents.

Counsel for the applicant (Mr. Katwa Kigen) basically submitted that application is based on grounds of security of the 1st Respondent, his counsel, witnesses and even the other parties. Secondly, the fear of interference with witnesses, adding that attempts to the witness to abandon their testimonies. He gave an example of a witness in another petition (Petition No. 1 of 2017) who had been persuaded to swear an Affidavit contradicting his earlier position. A 2nd example counsel gave was a case initiated by the EACC and DPP which had to be taken to Eldoret for hearing.

On security, counsel gave the example of the recent incident in which a school was attacked and 5 children murdered before members of the public invaded the police station, got out the suspect and lynched him. Counsel also asked the court to take judicial notice of the fact that Lodwar High Court does not have a fence nor security gadgets, and the fact that upto 60% of the population in Turkana County carry guns.

Counsel pleaded for transfer the same way petitions of Mandera and Garisa counties were transferred for hearing in Nairobi. And on the gazettement of Lodwar High Court, it was submitted that this was an administrative function that does not bid the court.

Mr. Onyinkwa, for the 2nd (3rd Respondents opposed the application on grounds, first, that even the 3rd parties giving the information are not disclosed. Also, that there has been no disclosure of the identities of any witnesses threatened and that the other cases referred to have their own peculiar circumstances. Further, that residents of Lodwar have a right to participate in these electoral process including the hearing of this petition in Lodwar.

Counsel also submitted that the attack on the school was an isolated criminal act of 1 person which ought not to oust the rights of the people of Lodwar. On the issue that residents (60%) are armed, counsel denied this. And that any case, other courts in the region like Kakuma, are also hearing petitions. Lastly, that transfer would not remove the issue of threats to witnesses since the witnesses are all locals and are well known.

Mr. Kinuthia for the petitioner, also opposed the application basically on grounds of costs and that the grounds of security are totally unsubstantiated. And lastly,k that the court ought to come up with a solution that does not discriminate against the people of Lodwar.

I have considered the submissions of the 3 learned counsel. The application seeks that this petition be heard in any other court, other than Lodwar High Court, Turkana County. The main ground raised in the application is security. And submissions have been made on same. The issue therefore for determination by this court are first, whether the issues raised on security would warrant such an order of transfer. And also whether this court has the Jurisdiction to issue the orders prayed. And lastly, whether this application has merit. I shall deal with the issues in that order.

On the first issue of security, it is submitted that there is insecurity in Turkana County and Lodwar in particular. Submissions were made that upto 60% of the residents are armed and a case cited of a recent killing of upto 5 students and the lynching of the suspect. I must say from the onset that the applicant’s sub missions lacked any specifics. It was never submitted on any general or widespread violence in Turkana County. This court is also not aware of the same. No evidence was produced to support the claim that upto 60% of the residents of Turkana are armed. And the incident mentioned regarding the killing of the 5 students and later, the suspect, must be treated as an isolated case. In any case, it was not shown to court that real circumstances of this case. For example, the motive of the attack; it may very well have been criminal in nature, not related to the political dynamics of Turkana County.

No witness has come forth to declare having received threats regarding this petition and none has been mentioned. Similarly, no party or counsel has come up to confirm such claims. Even the 3rd parties giving the information are not disclosed. Attempts were made to justify this plea with another petition pending before another court. The applicant, however, showed no nexus between that other pending petition and this one, or even to prove that that other petition has been transferred on the basis of security.

Even the fact that the case initiated by the EACC and DPP was taken for trial at Eldoret is rather unconvincing. No prove was shown that this was due to security issues. Similarly, the circumstances of Mandera and Garissa counties are not necessarily the same or similar to those of Turkana County and it is possible that there are other considerations (other than Security) that formed the decision to have the petitions from these 2 counties heard elsewhere. In any case, the petitions from these 2 counties are being heard as gazetted and there have been no orders of transfer of their location of hearing.

This court takes the view that this petition forms part of the electoral process. It is an opportunity for the voters of Turkana West constituency to know if indeed their rightful representative was declared the winner in the elections of 8th August, 2017. The import of this is that they have a right and an interest in the manner in which these proceedings are conducted. Article 50(1) guarantees every person a right to a fair and public hearing i.e. “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing......”

Proceeding with this petition in this court accords all persons the opportunity to attend the public hearings. To the contrary, should an order issue transferring this petition to another county, the residents and voters of Turkana County would have been denied this constitutional right. Otherwise the offer by the applicant to transport at his costs witnesses to the other venue if ordered by the court, whereas is very welcome, same is not feasible. Neither is it practical, since it is not only the witnesses who have an interest in this matter.

This court further takes Judicial notice of the fact that there are at least other petitions (Petition No. 4 of 2017) that have proceeded to hearing in this court. No fears of security have been raised therein. There are also petitions heard in other courst in the county including Kakuma Law Courts.

On the 2nd issue, it is worth noting that this is a duly gazetted High court in the Republic of Kenya. All operations of the court have been handled in this court and the court has not been referred to any known cases of breaches of security. This petition is heard in this court pursuant to Gazette Notice No. 9060 of 15th September, 2017 by the Hon. The Chief Justice. The said gazette notice has not been revoked and the same can not be revoked by way of an order out of this application, an order not prayed for in the first place.

In total therefore, this court is not convinced that the applicant has sufficiently established any ground to persuade this court to issue the orders sought. This application totally lacks in merit. I dismiss it and award costs of the same to the Respondents. Orders accordingly.

Dated, signed and delivered at Lodwar High Court this 15th day of November, 2017.

D.O. OGEMBO

JUDGE

Ruling read out in open court in presence of :

1. Mr. Kinuthia and Bosire for the Petitioner,

2. Ms. Lokatei for 1st Respondent and

3. Mr. Onyinkwa for 2nd and 3rd Respondents.

D.O. OGEMBO

JUDGE

15th November, 2017