[2017] KEHC 2713 (KLR)
The court held that while strict adherence to timelines in election petitions is paramount, the bereavement of Petitioners' counsel constituted a unique and compassionate circumstance justifying a short adjournment. The court noted that the Petitioners had already closed their case efficiently, and Miss Anyango had...
Source-derived case information.
- Citation
- [2017] KEHC 2713 (KLR)
- Parties
- Applicant: Robinson Simiyu Mwanga; Applicant: Alpha Kitazi Chore; Respondent: The IEBC; Respondent: Bilha Kiptugen; Respondent: Khaemba Patrick Simiyu
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Election Petition 1 of 2017
- Procedural Posture
- Election Petition / Application for Adjournment After Close of Petitioners' Case
- Outcome
- Application for adjournment allowed.
- Judges
- AC Mrima
- Legal Topics
- Adjournment of Hearing, Case Management, Counsel Unavailability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robinson Simiyu Mwanga
Applicant
Alpha Kitazi Chore
Applicant
The IEBC
Respondent
Bilha Kiptugen
Respondent
Khaemba Patrick Simiyu
Respondent
Procedural Posture
Election Petition / Application for Adjournment After Close of Petitioners' Case
Legal Issues
- 1 Whether the hearing should be adjourned to accommodate the absence of Petitioners' lead counsel due to bereavement.
- 2 Whether the Respondents would be prejudiced by the adjournment given the 2nd Respondent's commitments in Nairobi.
- 3 Whether the court's strict timelines for election petitions allow for such adjournments.
Ratio Decidendi
The court held that while strict adherence to timelines in election petitions is paramount, the bereavement of Petitioners' counsel constituted a unique and compassionate circumstance justifying a short adjournment. The court noted that the Petitioners had already closed their case efficiently, and Miss Anyango had continued with the proceedings in Mr. Gitonga's absence. The court found that the 2nd Respondent, though scheduled to testify in Nairobi, could make necessary arrangements given the importance of the election petition and the fact that the Nairobi matter was not an election petition. The adjournment to the following morning was therefore fair and would not unduly prejudice the...
Court Disposition
Application for adjournment allowed.
Orders
- The hearing is adjourned to 02/11/2017 at 08:30 am.
- Counsel for the Petitioner present in court to prepare and proceed if Mr. Gitonga does not attend.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
ELECTION PETITION NO. 1 OF 2017
ROBINSON SIMIYU MWANGA
ALPHA KITAZI CHORE..........................................PETITIONERS
VERSUS
THE IEBC.........................................................1ST RESPONDENT
BILHA KIPTUGEN..........................................2ND RESPONDENT
KHAEMBA PATRICK SIMIYU.......................3RD RESPODNENT
RULING NO. 2
Upon the close of the Petitioners' case Counsel for the Petitioners Miss Anyango who has been appearing with Mr S. Gitonga in these proceedings has sought for an adjournment of the hearing to tomorrow morning so as to enable Mr. S. Gitonga who lost a close relative yesterday and had to rash to Nairobi to be able to deal with the matter further more so on the cross-examination of the 2nd Respondent herein, Bilha Kiptugen.
The application is opposed by Mr. Yegofor the 1st and 2nd Respondents principally on the ground that he had a discussion with Mr Gitonga last night and they agreed to proceed on with the hearing today and that he was surprised to learn of the application in court.
Further, the 2nd Respondent has been bonded to appear and testify in a Criminal case in Nairobi tomorrow and on Friday and that she is scheduled to travel tonight by the 07:30 pm flight from Eldoret Airport.
Likewise, Counsel for the 3rd Respondent Mr Peter Wanyama is opposed to the application for adjournment and urges this Court to note that we have very limited time to deal with this matter to its conclusion and unless deliberate efforts are taken towards attaining that goal, we may not achieve the timely determination of the matter.
Having carefully considered the application I note that the issue of Mr S. Gitonga having lost a close relative came up yesterday and the Court had to adjourn at a certain point so as to give time to Mr. Gitonga to liase with his family members in Nairobi over the sudden occurrence. Mr Gitonga however indicated that he would travel to Nairobi after yesterday's proceedings.
I must commend all the Counsels and parties herein for the deliberate efforts taken in proceeding on with this matter. As at now, the Petitioners have closed their case and the matter is due for the Respondents' cases' hearing. That is for a mean achievement in three days.
In as much as this Court remains so alive and vigilant on the strict time-lines in this matter on one hand, the reality that a Counsel lost a close relative yesterday remains on the other hand. As Miss Anyango has been in Court since morning and has indeed proceeded with the hearing which has enabled this Court to deal with several witnesses and in view of the nature of the evidence to be adduced by the 2nd Respondent herein more so given that it is now 03:00pm, I am of the very considered view that adjourning the hearing to tomorrow morning will be a fair order in the unique circumstances of this case.
I also note that this matter had been fixed for hearing for the entire week and the 2nd Respondent is required to attend to the hearing as scheduled. Needless to say, the matter in which the 2nd Respondent is to testify in Nairobi is before the Magistracy and more importantly it is not an election petition. I therefore do believe that there is still adequate time for the 2nd Respondent to make the necessary arrangements and inform Nairobi of the position in this matter.
Having said so, I now make the following orders:-
a) The hearing is hereby adjourned to 02/11/2017 at 08:30 am.
b) Counsel for the Petitioner who is now in Court to prepare and proceed accordingly just in the event Mr. Gitonga does not turn up tomorrow.
Orders accordingly.
A.C. MRIMA
JUDGE
01/11/17
Delivered in open court and in the presence of:
Miss Anyango for the Petitioners
Mr. yego for the 1st and 2nd Respondents
Mr. Peter Wanyama for the 3rd Respondent