[2013] KEHC 3165 (KLR)
The court found that the errors in the pleadings, including the mistaken paragraph and repeated names, were honest mistakes acknowledged by all parties and could be corrected without prejudice. The court emphasized the sui generis nature of election petitions and the need to adhere to strict constitutional...
Source-derived case information.
- Citation
- [2013] KEHC 3165 (KLR)
- Parties
- Applicant: Philip Mukwe Wasike; Respondent: James Lusweti Muke; Respondent: IEBC; Respondent: Silas Rotich
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2013
- Procedural Posture
- Election Petition / Interlocutory Ruling on Pleadings and Amendments
- Outcome
- Interlocutory orders granted in part; amendments and late filing allowed with directions.
- Legal Topics
- Pleadings Amendment, Striking Out Paragraphs, Late Filing of Response, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Mukwe Wasike
Applicant
James Lusweti Muke
Respondent
IEBC
Respondent
Silas Rotich
Respondent
Procedural Posture
Election Petition / Interlocutory Ruling on Pleadings and Amendments
Legal Issues
- 1 Whether paragraph 6 of the 2nd and 3rd respondents' response should be struck out due to error.
- 2 Whether the prayer (1) referencing the wrong party should be marked as abandoned.
- 3 Whether the correction of names in paragraph 7 of the petition should be allowed as an amendment.
Ratio Decidendi
The court found that the errors in the pleadings, including the mistaken paragraph and repeated names, were honest mistakes acknowledged by all parties and could be corrected without prejudice. The court emphasized the sui generis nature of election petitions and the need to adhere to strict constitutional timelines, ruling that there is no automatic right to file a reply to the response. The court also considered the interests of substantive justice and granted the 1st respondent leave to file and serve his response and witness statements, despite the delay, to ensure fair hearing. The court struck out the erroneous paragraph, allowed the amendment of names, marked the misdirected prayer...
Court Disposition
Interlocutory orders granted in part; amendments and late filing allowed with directions.
Orders
- Paragraph 6 of the 2nd and 3rd respondents' response is struck out in its entirety.
- Prayer (1) referencing the wrong party is marked as abandoned.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Petition 5 of 2013 [if gte mso 9]><![endif]
PHILIP MUKWE WASIKE ………........……………... PETITIONER
AND
JAMES LUSWETI MUKE …………….....…... 1ST RESPONDENT
IEBC …………………………………….……. 2ND RESPONDENT
SILAS ROTICH ………………..…………….. 3RD RESPONDENT
RULING
With regard to the response filed by 2nd and 3rd respondents, I have seen the error referred to, which is conceded by the counsel for petitioner and for 1st respondent. It is really an honest mix-up which causes unnecessary confusion. I therefore order that para 6 of the response be and is hereby struck out in its entirety. The prayer (1) is also in reference to the wrong party and the same is marked as abandoned.
As regards the correction of names on para 7 of the petition, again I think that is an honest mistake as the names are repeated. Counsel seem to have no problem with the request and I direct that the 2nd name appearing at para 7 of the petition be amended to read ERICK KIMINGICHI WAPANGANA.
As regards filing of reply to the response, I am in agreement with Mr. Lubullelah that Election Petitions are causes sui generis in the sense that they are a special category of suits. Apart from that we are operating on an extremely tight constitutional time frame and I do not find any automatic right to reply to the response – the rules are clear – a petition is filed, a response made, then matters move with the greatest of respect to conclusion, that would only serve to delay the process and I detect no prejudice cause by lack of a reply to response.
I decline to grant such orders as no basis has been laid to warrant such orders.
As regards the 1st respondent who has not filed their response, at least ten days ago, the 1st respondent became aware of the petition, and having been elected, I would like to believe that he is aware of the Constitutional time frame in these matters. Time is of essence and for him to wait until the eve of the court session to now say he is not ready because he only just realized that his advocate had not filed any response, does not speak very well of him in terms of diligence. Of course that response ought to have been filed within 14 days of the service of the petition, which was served by way of publication in the newspaper. However for the sake of substantive justice, I think the provision must not be condemned in its restrictive sense, and more so because of the provisions of Rule 20 of the Election Petition Rules. I therefore grant leave to the respondent to file and serve his responses plus all the witness statements by 7th May 2013. Pre-trial on 9th May 2013. Notices to issue.
H.A. OMONDI
JUDGE
03/05/2013