[2017] KEHC 889 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

THE ELECTIONS ACT 2011

ELECTION PETITION NUMBER 8 OF 2017

SAAD YUSUF SAAD...........................................................................................................PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC)...1st RESPONDENT

NANCY WANJIKU KARIUKI..................................................................................2nd RESPONDENT

MOHAMED ASHA HUSSEIN...................................................................................3rd RESPONDENT

RULING

1. The proceedings herein relate to an election petition (the Petition”) dated 6. 9.17 in which Saad Yusuf Saad the Petitioner herein has challenged the election of Mohamed Asha Hussein the 3rd Respondent herein, as the Mombasa County Woman Member of the National Assembly. The Independent Electoral and Boundaries Commission and Nancy Wanjiku Kariuki are named as the 1st and 2nd Respondents respectively.

2. Before this Court for determination is a Notice of Motion dated 30. 10. 17 (“the Application”), in which the Petitioner seeks the following orders:

“1. Spent.

2. THAT there be a stay of any further proceedings in this petition pending the hearing and determination of this application.

3. THAT the 1st, 2nd and 3rd Respondent’s (sic) purported responses to the petition and any other pleadings filed in Court be struck out.

4. THAT the Petition dated 6th September 2017 be allowed as prayed.

5. THAT the costs of this Application and the petition be awarded to the Petitioner/Applicant.

6. THAT this Honourable Court be pleased to issue any further orders it may deem fit for the ends of justice.”

3. The grounds upon which the Application is predicated are set out in the Application and in the Supporting Affidavit of the Petitioner sworn on 30. 10. 17. It is the Petitioner’s contention that though all the Respondents were served with the Petition on 12. 9.17, the 1st and 2nd Respondents have to date not filed a notice of address for service. This failure is in contravention of the Elections (Parliamentary & County Elections) Petition Rules 2017. The 3rd Respondent only filed her notice of address of service on 20. 9.17 without leave of Court while the last date of filing was 17. 9.17. According to the Petitioner, the Respondents have contravened Rule 11(8) of the Election Act 2017 (sic). They are therefore strangers and busy bodies in this Petition out to waste the Court’s precious time. Their continued participation herein is an unmitigated illegality which the Court should not allow.

4. The Petitioner relies on the affidavit of service sworn by Patrick Mwema on 12. 9.17 who avers that he duly served the Respondents. He further relies on the affidavit of Siraji Mabonga Wawire and the call logs from Safaricom showing that the 3rd Respondent was called on the said date and she sent her brother to collect a copy of the Petition on that day.

5. The 1st and 2nd Respondents filed Grounds of Objection dated 3. 11. 17. The grounds are that the Application is bad in law and an abuse of the Court process as it purports to litigate issues determined by the Court as per the proceedings and Court order of 5. 10. 17. The Application is res judicata as it seeks to have this Court sit on appeal of its own decision. The Application is also bad in law as the Petition is yet to be served upon the 1st and 2nd Respondents as required by law, which issue has been raised in the 3rd Respondent’s application dated 25. 9.17. It is their view that the Application is orchestrated to frustrate the hearing of the application by the 3rd Respondent.

6. The 3rd Respondent avers in her Replying Affidavit sworn on 3. 11. 17 that the account of Patrick Mwema, the process server that she called him to tell her that she was sending her brother to collect the Petition for her, differs from that of Siraji Wawire who states that it was he who called Patrick Mwema to inform him that a Mr. Mohamed had gone to their office to collect the Petition for the 3rd Respondent. She denies calling Patrick Mwema at any time on 12. 9.17 to tell him that she was sending any person to him. She further avers that Patrick Mwema has not disclosed his telephone number to which the 3rd Respondent could have made a call to him and that Siraji Wawire states that in fact Patrick Mwema had no phone and had to borrow Siraji Wawire’s phone. The 3rd Respondent states that the call log does not show any outgoing call from her phone to that of Siraji Wawire. His allegation that she called him is therefore not true. The 3rd Respondent avers that the process server left a copy of the Petition with her son on Saturday 16. 9.17 in her absence.

7. The issues that fall for determination are:

i) Whether service was effected upon the Respondents.

ii) Whether the application is res judicata.

iii) Whether there has been violation of Rule 10(4) of the Elections Petitions Rules.

iv) Whether the Respondents have right of audience before the Court

v) Whether the pleadings filed by the Respondents should be struck out.

Whether service was effected upon the Respondents

8. In his submissions, Mr. Mwaniki Gitahi, learned Counsel for the Petitioner contended that all the Respondents were served on 12. 9.17 as per the filed affidavit of service. Mr. Wafula, learned Counsel for the 1st and 2nd Respondents submitted that the law prescribes personal service or service by advertisement. His position is that his clients are yet to be served as documents were dropped in some office. The law relating to service on the Independent Electoral and Boundaries Commission is specified in Rule 10(2) of the Elections Petitions Rules which provides:

“(2) Service on the Commission shall be by-

(a) delivery at the constituency, county or head office of the Commission;

(b) delivery at such other office as the Commission may notify;

(c) an advertisement that is published in a newspaper of national circulation.”

9. I have looked at the affidavit of service sworn by Patrick Mwema who avers that at the office of the 2nd Respondent in the Commission’s offices near State House, he served the Petition upon a Mr. Nsongomoa who accepted service. The law provides that service upon the Commission shall be effected by delivery at the constituency, county or head office of the Commission or at such other office as the Commission may notify. The 1st and 2nd Respondents have not denied this fact. I am therefore satisfied that service upon the 1st and 2nd Respondents was duly effected as provided by the Elections Petitions Rules.

10. As regards the 3rd Respondent, learned Counsel for the Petitioner submitted that the affidavit of Siraji Wawire and a call log show that the 3rd Respondent was duly called on 12. 9.17. The first phone call lasted 14 seconds while the second phone call lasted 35 seconds. The process server avers in his affidavit of service that the 3rd Respondent told him she would send her brother Mohamed which she did and he accepted service but declined to sign for the same. On his part, Mr. Buti, learned Counsel for the 3rd Respondent submitted that his notice of address of service was filed under protest for lack of service either direct or by advertisement as provided in Article 87(3) and Section 77 of the Election Act. It was contended that the Constitution, the Act and the Elections Petitions Rules were not followed in as regards service of the Petition. Learned Counsel relied on the case of Rozaah Akinyi Buyu v IEBC & Others, [2014] eKLR to buttress his submission.

11. Article 87(3) of the Constitution provides:

“Service of a petition may be direct or by advertisement in a newspaper with national circulation.”

Section 77(2) of the Election Act provides:

“A petition may be served personally upon a respondent or by advertisement in a newspaper with national circulation.”

Rule 10(1) of the Elections Petitions Rules provides:

“(1) Within seven days after the filing of a petition, the petitioner shall serve the petition on the respondent by—

(a) direct service; or

(b) an advertisement that is published in a newspaper of national circulation.”

12. Parick Mwema states on oath in paragraph 4 of his affidavit of service:

“that on the same day I was given mobile no. 0722355524 by the petitioner with information that it belongs to the 3rd Respondent and upon calling her and introduced myself and the purpose of my calling, she indicated to me that she will send somebody to collect her copy of the petition on her behalf at around 15:02 pm she called me and indicated that she is sending her brother by the name Mohamed.” Emphasis mine.

13. Siraji Wawire stated in his affidavit that Patrick Mwema borrowed his phone number 0707169424 to call the 3rd Respondent. I have looked at the call logs annexed to the affidavit of Siraji Wawire. They indeed show that there were 2 outgoing calls from Siraji Wawire’s number to the 3rd Respondent’s number. These calls were made at 13:45 and 13:48 respectively on 12. 9.17. However, the logs do not show any incoming call to Siraji Wawire’s number from the 3rd Respondent’s number as averred by Patrick Mwema. Indeed there was no call incoming or outgoing from Siraji Wawire’s number at 15:02 as alleged by Patrick Mwema in his affidavit. No call logs in respect of Patrick Muema’s phone number were produced to show that the 3rd Respondent did indeed call him as alleged. From the material before me, I am unable to find that the 3rd Respondent called Patrick Mwema to tell him that she is sending someone to collect the Petition on her behalf.

14. The 3rd Respondent claims that the Petition was served upon her 8 year old son Hussein Mwashe Maganga at her residence on Saturday 16. 9.17 while she was away. The Petitioner on the other hand claims that service was effected on the 3rd Respondent’s brother Mohamed at the Petitioner’s advocate’s office. It is difficult to tell exactly where service was effected. He who alleges must prove. The burden therefore is on the Petitioner to prove that he did indeed effect service on the 3rd Respondent’s brother, a burden he has failed to discharge. Service as contemplated under the Constitution, the Act and the Elections Petitions Rules is by direct service or by advertisement in a newspaper of national circulation. Direct service has been defined in Rule 2 as personal service or service on a duly authorized agent. Even if it were true that the Petition was served upon Mohamed as alleged, the question begs, was he the 3rd Respondent’s a duly authorized agent? The answer is in the negative for the simple reason that she has disowned him. Had she authorised Mohamed to accept service on her behalf it would appear unlikely that he would decline to sign for the same. Service upon a person not authorised by the 3rd Respondent is not service as contemplated in the law.

15. The Constitution, the Act and the Elections Petitions Rules have all provided for stress-free service. To avoid a dispute such as the present one on whether direct service was effected or not, all a petitioner needs to do is place an advertisement in a newspaper of national circulation in the specifications provided in the Elections Petitions Rules to effect proper service of a petition on a respondent. It is not clear why the Petitioner herein chose the difficult path. Having taken all the foregoing into account, I do find that service was not effected on the 3rd Respondent on 12. 9.17.

16. On the filing of the notice of address for service it is the Petitioner’s contention that the 3rd Respondent filed the same 3 days after the deadline stipulated in the Rules. I have looked at the said notice. It is worded in part as follows:

“The third Respondent above named, Mohamed Asha Hussein, in compliance with Rule 10(4) of the Elections Petitions Rules, under protest (for lack of direct service/personal service upon her of the above Petition) gives her address for service in the Petition to be…”

This Court has already pronounced itself on the issue of service upon Mohamed on 12. 9.17 allegedly on behalf of the 3rd Respondent. As a result, the issue of the 3rd Respondent filing the notice of address of service 3 days after the specified period does not and cannot arise.

17. Having so found, I shall now proceed to consider the balance of the issues for determination only in respect of the 1st and 2nd Respondents

Whether the application is res judicata

18. In response to the Application herein, the 1st and 2nd Respondents argue that the issues raised are res judicata.The principle of res judicata anchored in Section 7 of the Civil Procedure Act and is a principle of general application. Learned Counsel submitted that on 5. 10. 17 he made an application before the Court for admission of the response he had filed late. According to learned Counsel, any issue relating to the response filed ought to have been raised then. The application was allowed without objection from the Petitioner and an order by consent issued to that effect. The Petitioner cannot now be seen to come back. It would amount to the Court sitting in appeal of its own decision. It was further submitted that the principle of res judicata applies to interlocutory applications. Litigation must come to an end. He urged the Court to strike out the Application.

19. For the Petitioner it was submitted that the principle of res judicata does not apply herein. Under the Elections Petitions Rules any respondent who wishes to participate in proceedings must file notice of address for service and failure to do so cannot be cured as it is a mandatory requirement of the Elections Petitions Rules. Learned Counsel contended that though he consented to admission of the response filed late, his main issue is that to date no notice of address for service has been filed.

20. The doctrine of res judicata is found in Section 7 of the Civil Procedure Act which provides:

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

21. Was the issue of the notice of address for service directly and substantially in issue on 5. 10. 17? The simple answer is no. The same cannot therefore be said to be res judicata. To this extent therefore I do agree with the submissions of learned Counsel for the Petitioner.

Whether there has been violation of Rule 10(4) of the Elections Petitions Rules.

22. In his submissions learned Counsel for the Petitioner argued that the failure by the 1st and 2nd Respondents to file their notice of address of service to date contravenes Rule 10(4) of the Election Petitions Rules. Rule 10(4) provides:

“(4) A person served with a petition shall file and serve upon all the other parties a notice of address for service within five days from the date of such service.”

23. A respondent is required to file a notice of address for service within 5 days of being served with a petition. It is not disputed that the 1st and 2nd Respondent have not to date filed their notice of address for service. To that extent, the 1st and 2nd Respondent are in violation of Rule 10(4) of the Elections Petitions Rules.

Whether the 1st and 2nd Respondents have right of audience before the Court

24. It was submitted for the Petitioner that under Rule 11(8) of the Election Petitions Rules, a respondent who has not filed a response to petition as required under the rules shall not be allowed to appear or act as a party in the proceedings. According to the Petitioner therefore, the 1st and 2nd Respondents have no locus standi and their continued participation herein is an unmitigated illegality. Rule 11(8) provides:

“(8) A respondent who has not filed a response to a petition as required under this rule shall not be allowed to appear or act as a party in the proceedings of the petition.”

25. A reading of the above rule indicates that a respondent who has not filed a response to a petition shall not have audience before the Court. The rule applies to a response and not to a notice of address for service. Nothing in the Rules excludes a respondent who has not filed a notice of address of service from participating in the proceedings. If it had been the intention to lock a respondent out of proceedings for failure to file a notice of address of service, nothing would have been easier than for of the Rules Committee to so provide. In the circumstances, I am not persuaded that failure to file a notice of address of service is sufficient to strip the 1st and 2nd Respondents of their locus standi in these proceedings.

Whether the pleadings filed by the Respondents should be struck out

26. The record shows that on 5. 10. 17, learned Counsel for the 1st & 2nd Respondents applied to have the response by his clients admitted though filed out of time. He told the Court that he had discussed the matter with learned Counsel for the Petitioner who had no objection. The record shows that learned Counsel for the Petitioner did in fact tell the Court that he had no objection. Accordingly, the Court ordered by consent that the joint response of the 1st & 2nd Respondents be admitted. The Petitioner now seeks to strike out a response the admission of which he had consented to. The correct position is that this matter was dealt with and resolved vide the consent order.

27. As stated above, the issue of the response of the 1st & 2nd Respondents was resolved by this Court on 5. 10. 17 when the consent order was granted. The Petitioner is thus estopped from raising it again. In this regard, I am guided by the case of Zurich Insurance Company Plc vs. Colin Richard Hayward [2011] EWCA CIV 641where the Court stated: -

“Estoppel by res judicata, or estoppel by record, is a manifestation of the principle that judicial decisions once made must be accepted as final and are not open to challenge. Ultimately, it rests on a rule of policy that it is in the public interest for there to be finality in litigation, but it also sustains an important principle that decisions of competent tribunals must be accepted as providing a stable basis for future conduct. The Latin word “res judicata” mean simply “a thing judicially determined.” They may apply to the claim as a whole (usually referred to as “cause of action estoppel”), or may refer to one or more specific issues which the court was required to decide in the course of reaching its decision on the matter before it (what is generally referred to as “issue estoppel” …. The fact that an order is made by consent does not in my view prevent it from giving rise to an estoppel by record, provided that the nature of the order is such that it would otherwise have that effect.”

28. In view of the foregoing, I find no reason to strike out the responses filed by the Respondents as prayed by the Petitioner. The application lacks merit and the same is dismissed with costs which shall abide the outcome of the Petition.

DATED, SIGNED and DELIVERED in MOMBASA this 13th day of November 2017

_________

M. THANDE

JUDGE

In the presence of: -

………………………for the Petitioner

……………………for the 1st & 2nd Respondents

………………………for the 3rd Respondent

………………………Court Assistant