[2017] KEHC 2505 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

ELECTION PETITION NO. 2 OF 2017

SAMMY NDUNGU WAITY..............................1ST PETITIONER

DENNIS KIMNGAROR LEMAN.....................2ND PETITONER

versus

INDEPENDENT ELECTORAL AND

BOUNDERIES COMMISSION...................1ST RESPONDENT

NDIRITU MUREITHI....................................2ND RESPONDENT

JOHN MWANIKI.........................................3RD RESPONDENT

COUNTRY RETURNING OFFICER,

LAIKIPIA COUNTY......................................4TH RESPONDENT

RULING

1. During the general election of 8th August 2017, NDERITU MURIITHI (the 2nd respondent in this petition) was elected the Governor of the Laikipia county. That election is challenged by SAMMY NDUNGU WAITY (the 1st petitioner) and DENNIS KIMNGAROR LEMAN (the 2nd Petitioner). For the purpose of this ruling it is not necessary to set out the grounds relied upon by the petitioner in their challenge of that election other than to state that the 1st and 4th Respondents are the electoral body in Kenya and county returning officer at Laikipia County respectively. The 3rd respondent is sued as the Deputy Governor of Laikipia County.

2. This Ruling is in reference to the application dated 18th September 2017 filed by the 2nd Petitioner. I will reproduce what is on the face of that application as follows:-

“The Petition of SAMMY NDUNGU WAITY, the 1st Petitioner and DENNIS KIMNGAROR LEMAN, the 2nd petitioner presented on the 8th September 2017. ”

The 2nd Petitioner applies for leave to withdraw himself from the petition as the 2nd petitioner and have his supporting affidavit from pages 117 – 157 of the Petition expunged from the court records on the following grounds:-

“1. That the 2nd Petitioner had a careful reflection and consideration on the petition and therefore wishes to withdraw himself from being the 2nd petitioner.”

3. That application is supported by an affidavit of the 2nd petitioner sworn 1st September 2017. By that affidavit the 2nd petitioner deponed that he decided to file this petitioner jointly with the 1st petitioner as a voter and due to what he termed as the conduct of the election, and that he had decided to withdraw himself from this petition but that the said decision to withdraw himself was of his own free will which was devoid of coercion and or undue influence.

4. Learned counsel Mr. Michael Muchemi Ndegwa in support of the application submitted that the 2nd Petitioner’s application was brought under the court’s inherent power because the Election (Parliamentary and County Elections ) Petition Rules 2017 (hereinafter referred to as the Rules) did not cover an application such as the 2nd Petitioner’s application. Further that the 2nd petitioner had a right, as a voter, to file the present petition and that he equally had the same right to withdraw himself from it. That the 2nd petitioner also sought to withdraw his affidavit in support of the election petition which is at pages 117 to 157 of the petition.

5. Learned counsel Mr. J. M. Njengo on behalf of the 3rd Respondent did not oppose the 2nd petitioner’s application subject to payment of costs. He submitted that the 3rd Respondent had incurred costs in filing his responses by the time the 2nd Petitioner filed the application to withdraw himself from this petition. Mr. Njengo submitted that the 3rd Respondent’s costs should be paid from the amount of Kshs.500,000 which was paid into court by the petitioners as deposit of security of costs as required under section 78 of the Election Act.

6. Learned Counsel Mr. Njengo further submitted that the 2nd petitioner’s application issui generies because it is not covered by the Rules and more specifically Rule 21. That Rule 21 of the Rules only applies where the petitioner seeks to withdraw a petitioner and where he is a sole petitioner. In this Petition Mr. Njengo stated that there is more than one petitioner.

7. By his written submission Mr. Njengo stated thus:-

“A court cannot bar a party from withdrawing from his own matter. All that the court can do is to make an order as to costs where it is deemed appropriate as in the instant petition.”

He proceeded to state in those submissions that once the 2nd petitioner withdrew from this petition logically he was entitled to have his affidavit in support of that petition expunged.

8. Learned Counsel Ms. Maria Mbeneka Mutua on behalf of the 2nd Respondent stated that the 2nd Respondent did not oppose the withdrawal of the 2nd Petitioner from this petitioner subject to payment of costs of the 2nd Respondent. Learned counsel Ms. Mbeneka also drew the court’s attention to earlier proceedings in this matter where learned counsel Mr. Magee wa Magee for the 1st Petitioner had orally intimated that the 1st Petitioner would not object to the withdrawal of 2nd Petitioner from this petition.

9. Learned Counsel Mr. Collins Bush Wanjala on behalf of the 1st and 4th Respondents did not oppose the 2nd Petitioner’s application subject to payment of costs of the 1st and 4th Respondents. Learned counsel submitted that in considering the 2nd petitioner’s application a distinction should be drawn between withdrawal of a petition and the withdrawn of a petitioner from a petition. He posed a question to the court, that is, what would be the implication of a party who wished to withdraw from a petition if he was forced to remain in such petition. He submitted that the objective of an election court is to give a just, expeditious, proportionate and affordable resolution and that accordingly to deny the 2nd Respondent to withdraw himself would mean the court is engaged entertaining his case and yet that time could be well utilized hearing a party willing to be heard. Further that to force the 2nd petitioner participate in this petition would unnecessarily increase costs and yet election petitions are expensive. In the learned counsels’ view the withdrawal of the 2nd petitioner from this matter would not occasion the 1st petitioner any injustice or prejudice.

10. Learned Counsel Mr. Ramadhani Abubakar for the 1st Petitioner opposed the 2nd Petitioner’s application. Mr. Abubakar submitted that if the 2nd petitioner was allowed to withdraw himself from the petition and was permitted to have his affidavit expunged that evidence of the 2nd petitioner in the petitioner would not be available to the court which would have adverse effect not only on the 1st petitioner but also on the people of Laikipia County because withdrawal of that evidence would be tantamount to withdrawing the petition. Further that the 2nd petitioner’s affidavit had annextures of affidavits of person who are witnesses in this petition. Mr. Abubakar further submitted that the 2nd petitioner, in this petition, was representing the interest of the Pokot community and that they would suffer if the withdrawal was allowed.

11. On costs learned counsel Mr. Abubakar cited Rule 24(3) of the Rules and submitted that the security of costs Kshs.500,000 deposited in this court was deposited by the 1st petitioner to the exclusion of the 2nd petitioner. In that regard he submitted that that deposit should remain intact in this matter and that costs of withdrawal should be paid by the 2nd petitioner. He further submitted that Rule 30 of the Rules only permits an election court to specify costs to be paid at the conclusion of the petition.

12. The 1st petitioner by his affidavit in reply sworn on 12th October 2017 deponed that the petition was a joint petition filed by him and the 2nd petitioner thereby implying that it could not be withdrawn by one of them. He further deponed that the 2nd petitioner had been chosen by the Pokot Community leaders and if he was allowed to withdraw himself it would adversely affect that community. 1st petitioner deponed that the 2nd petitioner had informed him that he was coerced to sign some documents, and the 1st petition stated that he suspected 2nd petitioner was coerced to sign the documents relating to the present application of withdrawal.

13. 1st petitioner deponed that the 2nd petitioner’s affidavit in support of the application for withdrawal was amended which was procedurally irregular and was unknown in law. He prayed that affidavit be struck out.

COURT’S ANALYSIS AND DETERMINATION

14. There are at least three broad areas that call for my determination. The first is whether the order for the 2nd petitioner to withdraw from this petition should be allowed; secondly what is the fate of the 2nd petitioner’s affidavit sworn on 18th September 2017 and the affidavits of three witnesses, filed in this petition, drawn and filed by the learned counsel Mr. Muchemi; and whether costs can be awarded and if so where should they be drawn from.

15. The 2nd petitioner by his application dated 18th September 2017 seeks the leave of this court to withdraw himself from this petition. Although that application is not opposed by all the Respondents the 1st petition opposes it arguing that firstly the petition is one, a joint petition; and secondly if allowed to withdraw the 1st petitioner and the people of Laikipia County will be adversely affected.

16. I ask myself a rhetorical question. Is the petition before this court one petition? The answer to that question is in the affirmative. The next question is whether that petition is filed by two petitioners. The obvious answer to that question is yes. Bearing those question and answers in mind can one petitioner who no longer wishes to proceed with this petition be disallowed to remove himself from it? The answer in my view is the one very well articulated by learned counsel Mr. Bush Wanjala. He submitted that a party cannot be forced to remain in a court action, and I would add even an action that he has initiated, because to do so would be to engage in waste of time, by having an unwilling party in court action, and undoubtedly would cause an escalation of unnecessary costs. Parties who file an action always retain the right to either withdraw that action or withdraw themselves from the action which withdrawal would depending on the circumstances be subject to such order of costs as the court would determine. This was the holding of the Court of Appeal sitting at Malindi in the case BEIJING INDUSTRIAL DESIGNING & RESEARCHING INSTITUTE V LAGOON DEVELOPMENT LIMITED (2015)eKLR where it was stated:-

“As a general proposition, the right of a party to discontinue a suit or withdraw his claim cannot be questioned. There are many circumstances when a plaintiff may legitimately wish to discontinue his suit or withdraw his claim. The Supreme Court of Nigeria inABAYOMI BABTUNDE V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD & OTHERS, SC 154/2002identified those circumstances to include where:-

(i) A plaintiff realizes the weakness of his claim in the light of the defence put up by the defendant;

(ii) A plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date;

(iii) Where by abandoning the prosecution of the case, the plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation, or

(iv) A plaintiff may possibly retain the right to re-litigate the claim at a more auspicious time if necessary.

In the above caseJustice Ibrahim Tanko Mohammadalso addressed his mind albeit in the content of the law of Nigeria, to the right of a party to withdraw his suit, and made observations, which we think are pertinent to the central issue before us. The learned judge stated that a plaintiff has right to discontinue his action if he so chooses because the filing of the action does not necessarily imply that the parties have irrevocably committed themselves to resolving their dispute by litigation. In addition, a court of law cannot force an unwilling plaintiff to continue with an action because, even if the court insists that he should continue, he may well refuse to tender evidence or take any further steps in the action. Here in Kenya, the Supreme Court has adopted a similar approach of not inhibiting a party’s wish to withdraw proceedings. Thus inJOHN OCHANDA V TELCOM KENYA LTD, SC APP. NO. 25 OF 2014, Ibrahim SCJ,was considering an application for leave to withdraw a Notice of Appeal under Rule 19 of theSupreme Court Ruleswhich allows a party, at any time before judgment, to withdraw any proceedings with leave of the court. He stated:-

“I do hold the view that a prospective appellant is at liberty to withdraw a Notice of Appeal at any time before the Appeal has been lodged and any further steps taken. No proceedings have commenced strictly. I am also of the view that just like under the Civil Procedure Rules or Court of Appeal Rules, the right to withdraw or discontinue proceedings or withdraw a Notice of Appeal respectively ought to be allowed as a matter of right subject to any issue of costs, which can be claimed by the respondents, if any. In this particular case, there cannot be any reason for interpartes hearing and the matter can proceed ex parte as the right to withdraw cannot be taken away.”

That proposition was accepted and followed by the Supreme Court inNICHOLAS KIPTOO ARAP KORIR SALAT V. IEBC & 7 OTHERS, SC APP. NO. 16 OF 2014where it was reiterated that:-

“A party’s right to withdraw a matter before the court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”

……. The right of the plaintiff to withdraw his suit cannot be taken away. It is a kind of absolute and untrammeled right. We understand the apex court to say that even where leave of the court is required, subject to considerations such as costs, (terms that are just) the courts ought not to stand in the way of a plaintiff who wishes to discontinue his suit.”

17. In view of the above decision of the Supreme Court and the Court of Appeal can the 1st petitioner object to the 2nd petitioner’s prayer to withdraw himself from this petition. In my view he cannot. To be allowed to object would be to allow him to trample on the right of the 2nd petitioner to choose to litigate or not to litigate.

18. Would the withdrawal by the 2nd petitioner have adverse effect on the Pokot Community. As correctly submitted by the 2nd Petitioner’s and the Respondents’ counsels, there is no evidence before the court that the 2nd petitioner filed this petition on behalf of the Pokot community. Learned Counsel Mr. Njengo was correct in directing the attention of the court to Rule 2 of the Rules where the definition of a ‘Petitioner’ is given. It is defined as follows:-

“Petitioner” means a person who files a petition to the election court under the Constitution or under the Act in accordance with these Rules.”

19. There is nothing which either in the petition or in the 2nd petitioner’s affidavit which shows that the 2nd Petitioner filed the petition on behalf of the Pokot Community. The 2nd Petitioner as can be discerned filed the petition in his own right and was a petitioner as defined in Rule 2 of the Rules.

20. The 1st Petitioner had a burden to prove what he alleged in his replying affidavit that the 2nd petitioner was coerced to withdraw from this petition. Indeed the 1st petitioner by his said replying affidavit deponed that he was suspicious that the 2nd petitioner was coerced to sign papers for the withdrawal of this petition. Suspicious has no probative values. One would have expected that if there was coercion the 2nd petitioner could have reported it to the police. Accordingly that allegation by the 1st petitioner is rejected.

21. It follows from the above discussion that there is no basis to deny the 2nd petitioner’s prayer to withdraw from this petition. That being so the 2nd petitioner’s affidavit in support of the petition must be expunged. Since the 2nd petitioner by his application clearly shows that he wants nothing to do with the petition it follows that his evidence filed in support of the petition ought to be expunged. The main opposition of the 1st petitioner to that affidavit of 2nd petitioner being expunged was because it had annexed to it further affidavits of three other persons namely Darwin Rionomuto Pombo, Danson Apal Ngimor and Mamukong Simau. It is important to state that the affidavits of those three persons are filed as annextures to the 2nd petitioner’s affidavit in support of the petition. They are not stand alone affidavits. In my view if the main affidavit of the 2nd petitioner is expunged, as it will be here, the annextures to it must also be expunged. In any case the style of annexing affidavits to the petitioner’s affidavit is unusual and was criticized by the Supreme Court in the case RAILA ODINGA & 5 OTHERS –V- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 3 OTHERS (2013) eKLR where the said court stated:-

“This is an unusual way of availing affidavits as “annextures” or “evidence”, they are not independent affidavits filed to stand on their own, as evidenced in the particular proceedings. We would understand if an affidavit is sworn in other proceedings in the past, is annexed as evidence of that affidavit. However to have several affidavits sworn for the purpose of current proceedings and annexed as evidence is most unusual, if not strange, in our view.

Firstly, such affidavit evade payment of the filing fee and, secondly, their probative value come into question.”

The Supreme Court went on to term such a manner of introducing evidence as ‘anomaly’.

22. It follows that since the affidavits annexed to the 2nd Petitioner’s affidavit would not have probative value in this matter there will be no impediment nor prejudice to the expunging them together with the 2nd petitioner’s affidavit.

23. The second issue being considered herein is whether the 2nd Petitioner’s affidavit sworn in support of his amended application to withdraw from this petition and the affidavits of Darwin Rionomuto Pondo, Danson Apal Ngimor and Mamukong Simau (hereinafter referred to as the three persons) contravened the law.

24. The objection to the affidavit of 2nd Petitioner sworn on 18th September 2017 in support to his amended application to withdraw was that it was amended which amendment the 1st Petitioner termed as irregular and there sought it be struck out. That affidavit was first filed in court by the 2nd Petitioner on 18th September 2017 in support of his application to withdraw. The court on 2nd October 2017 granted the 2nd Petitioner leave to amend that application to withdraw which was amended and filed in court on 10th October 2017. That amended application is the application under consideration in this ruling. In filing the amended application the 2nd Petitioner also filed an amended supporting affidavit. It is those amendments to the affidavit that provoked the 1st Petitioner to seek the striking out that affidavit. I will reproduce the paragraph of that affidavit that were amended for better understanding:-

Paragraph 2

Before amendment:

“That I together with 1st Petitioner herein, filed the petition herein before this Honourable Court on the 8 September 2017. ”

After Amendment:

“That the 1st Petitioner and I jointly filed this Petition before this Honourable court on the 8th day of September 2017. ”

Paragraph 3

Before Amendment:

“That my desire to file the Petition was based on my Constitutional Rights as a voter to file a Petition regarding the conduct of an election.”

After Amendment:

“That my decision to file the petition was based on my constitutional rights as a voter to file a petition regarding the conduct of an election.”

Paragraph 4

Before Amendment:

“That I have since decided hereby do withdraw the petition filed on 8th September 2017 wherein I am the 2nd Petitioner.”

After Amendment:

“That I have decided and hereby do withdraw myself from the Petition filed on 8th September 2017 wherein I am the 2nd Petitioner.”

Paragraph 7

Before Amendment:

“That I swear this affidavit believing its contents to be true to the best of my knowledge, information and belief, sources whereof have been disclosed.”

After Amendment:

“That to the best of my knowledge and belief, no agreement or terms of any kind as been made, and that no undertaking has been entered into, in relation to my withdrawal from the petition.”

25. The learned counsel for the 2nd Petitioner relied on a persuasive authority of the High Court being the case SWALEH GHEITHAN SAANU –V- COMMISSIONER OF LANDS & 5 OTHERS (2002)eKLR where the court was faced with a similar situation as the one before me. The court in that case held in respect to an affidavit that had been amended thus:-

“While I have upon mere common sense and/or logic, agreed that the substantive deponements which are the subject matter of the oath in an affidavit should not be amended, any other formal parts of it like the tile should not in my view, as a general rule, be barred from being amended. This is because such parts do not appeal to offend substance of the oath upon which an affidavit is grounded.”

The learned judge proceeded to find that the amendments in the affidavit before him were merely technical in nature rejected the objection raised to that amended affidavit. I am persuaded by the above decision SWALEH GHEITHAN (supra) but unlike that case what we have in this present case is an affidavit that was extensively amended where portions were struck out while others were added in. So unlike the case of SWALEH GHEITHAN (supra) the 2nd Petitioner extensively amended his affidavit. The amendments he undertook, as seen above, are more than technical amendments. Depositions in an affidavit are statements under oath and that being so they cannot be subject to amendment. This was indeed confirmed in the case REPUBLIC –V- RESIDENT MAGISTRATE’S COURT MKS & STEPHEN MAUNDU MUIA (2004)eKLR where the judge stated:-

“Counsel for the respondent relied on the case ofEASTERN & SOUTHERN DEVT. BANK VERSUS AFRICAN GREENFIELDS LTD HCC 1189/00where the judge ruled that an affidavit cannot be amended as it is the truth and the truth cannot be amended. The applicant seeks to amend his affidavit annexed to the application dated 11. 2.2004.

I agree with the Ruling above cited case that counsel cannot amend his affidavit. He has told the court the truth in his earlier affidavit annex to application dated 11. 2.2004. He cannot change it. The court cannot allow an application to amend affidavit.”

26. Following my finding above that the 2nd petitioner extensively amended his affidavit that affidavit filed in court on 10th October 2017 is accordingly herein by struck out. Having struck out that affidavit in my view the application for the 2nd Petitioner to withdraw himself from this petition does not fail because the un-amended application of the 2nd petitioner was supported by the 2nd petitioner’s un-amended affidavit which affidavit can sufficiently support the amended application.

27. The 1st Petitioner also objected to the affidavits of the three persons which affidavits were sworn in support of the 2nd petitioner’s prayer to withdraw from this petition. However those affidavits were drawn and commissioned by learned counsel Mr. Muchemi counsel acting for the 2nd Petitioner. Section 4(1) of the Oaths and Statutory Declaration Act Cap 15 forbids a commissioner commissioning an affidavit he has drawn. That section in its proviso provides:-

“Provided that a Commissioner for Oaths shall not exercise of the power given by this section in any proceedings or matter in which he is the advocate for any of the parties to the proceedings or concerned in the matter, or clerk to any such advocate, or in which he is interested.”

28. In the case CALTEX OIL (KENYA) LIMITED –VS- NEW STADIUM SERVICE STATION LTD & ANOTHER (2002)eKLR Justice Onyango Otieno ( as he then was) when confronted with affidavit commissioned by its drawer stated thus:-

“I still stand by what I did say in the case of James Francis Kariuki & Another vs. United Insurance Co. Ltd HCCC No. 1450 of 2000 that such an affidavit sworn in violation of section 4(1) of the Oaths and Statutory Declarations Act is for all intents and purposes not an affidavit as envisaged in law and is not capable of being received under Order 18 Rule 7 as it offends a provision of an Act of Parliament and does not represent a mere irregularity either in defect as to form or by misdirection of the parties, or in the title ……….. I feel certain in my mind that whatever way one looks at those affidavits, they were simply not affidavits at or for purposes of the law. I have considered the affidavits in support and I do not think the errors were inadvertent.”

29. It follows the three affidavits which were commissioned in contravention of section 4(1) of Cap 15 are hereby struck out.

30. The third issue for consideration is whether costs should be awarded and if so whether those costs should be obtained from the security of costs deposited by the petitioners at the filing of this Petition. It will also be necessary to consider whether the costs, if any, should be determined by this court.

31. The court invited all the learned counsels to address it on whether the costs of the removal of the 2nd Petitioner should be awarded at this stage or whether they should await the conclusion of this petition as stated in rule 30 of the Rules. That Rule provides that ‘The election court may, at the conclusion of the petition make order specifying’ the total costs payable, and the person who should pay the costs. Each counsel addressed him / herself to that court’s question.

32. Learned Counsel Mr. Njengo submitted that if the court allows the 2nd Petitioner to withdraw from this petition the Respondents were entitled to costs so far incurred in responding or defending the petition. He submitted that the mischief sought to be cured by the requirement of deposit of security of costs is to curb against vexatious litigants who would file unnecessary proceedings in court. That as soon as this court determines that the 2nd Petitioner should withdraw from this petition costs against him should be ordered because he shall cease to be a party in this matter. That such costs should be ordered to be paid out of the deposit of security of costs.

33. Learned counsel Ms. Maria Mbeneka supported submission of Mr. Njengo and submitted that once the court allowed the 2nd petitioner to withdraw from the petition he would no longer be a party in the proceedings and the costs associated with him would be subject to taxation as provided under Rule 31(3) of the Rules. Learned Counsel urged the court to address itself to the costs of the 2nd Petitioner at this juncture.

34. Learned Counsel Mr. Bush Wanjala submitted that there are two principles relating to costs. The first is that costs follow the event and secondly that costs are at the courts discretion. He submitted that the court has liberty to award costs and making that award can order when those costs should be paid. In this case learned counsel stated that since the 2nd Petitioner is exiting the matter it would not be just to wait until the end of the trial to assess those costs.

35. Mr. Abubakar Learned Counsel for the 1st Petitioner submitted that Rule 30 of the Rules is clear that the court should award costs at the conclusion of the Petition. That it would therefore be premature to award costs at this stage. Mr. Abubakar was of the view that considering the provision of Rule 33(2) of the Rules the Security of costs deposited in court should not be used to pay the costs of the 2nd Petitioner because such an order would be defeating the purpose for which deposit of costs is ordered. Learned counsel proceeded to inform the court that the security of costs was deposited in court by the 1st Petitioner to the exclusion of the 2nd Petitioner. For that reason he submitted that costs awarded against the 2nd Petitioner should be paid by him and that any order for those costs to be paid from the deposit of costs would be frustrating the petition. In his view the security of costs are intended to meet incidental costs such as visiting the scene amongst others.

36. Learned Counsel for the 2nd Petitioner Mr. Muchemi submitted that the security of costs was paid by both Petitioner and the 2nd Petitioner having withdrawn himself from the petition at the very least the costs associated with him should be recovered from the deposited security for costs. He requested the court to deal with costs now because thereafter, once the 2nd Petitioner ceases to be a party, he will not have an opportunity to address the court on costs.

37. Section 78 of the Election Act requires a petitioner to deposit security for costs that may become payable by the petitioner. In the case of a challenge to a governor’s election the deposit is Kshs.500,000. It has been stated that the purpose of the requirement of that deposit of costs is to discourage frivolous or vexatious litigants from challenging elction results. See ESPOSITO FRANCO –V- AMASON KINGI JEFFAH & 2 OTHERS Civil Appeal No.(Nairobi) 248 of 2008. Where there are two petitioners, as in this petition, only one single deposit is needed. In this case the two petitioners deposited, as required under section 78 of the Election Act, Kshs.500,000 as deposit for security of costs.

38. The submission on behalf of the 1st Petitioner that he alone paid the deposit of security of costs is rejected by this court. The law, particularly Section 78 of the Election Act requires whether there be 10,20 or just 1 petitioner that the deposit be made of Kshs.500,000 within 10 days of filing a petition against of an election of a governor. The purpose of that deposit is to cover the costs that would be incurred in the defence of that petition whether those costs are incurred by one or all petitioners. The deposit of Kshs.500,000 is not assignable to any one Particular Petitioner and Mr. Abubakar fell in error in submitting that the deposit of security of costs having, allegedly, been deposited by the 1st petitioner the cost incurred by the 2nd petitioner cannot be paid from that deposit. The 2nd Petitioner’s costs are costs incurred in this petition and are recoverable from the deposit made in obedience to section 78 of the Election Act.

39. A question may arise, should the election court after ordering the 2nd Petitioner’s costs to be paid from the amount deposited in this case order the remaining 1st Petitioner to deposit into court an amount equivalent to that order of costs in order to have the amount held in court to be Kshs.500,000. In other words should 1st petitioner be ordered to make good the amount withdrawn from court to pay 2nd Petitioner’s costs? I admit that I cannot find any support of such an order under the law. Indeed there is no power for the election court to order a petitioner to enhance the deposit of costs from the amount stated under Section 78 of the Election Act. In the case of CHARLES OBERA ORITO & ANOTHER V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 2 OTHERS (2017)eKLR Justice W. Okwany in considering whether an election court can order such an enhancement stated:-

“I find that nowhere in the Elections Act is this court granted any powers to enhance the amount to be deposited as security for costs or to required petitioner to demonstrate his financial capability to meet costs that may eventually be awarded an(sic)a successful opponent …… In the same vein, even assuming that this court has the jurisdiction to make such order of enhancement of deposit of security for costs, which is not the law as I have already stated in this judgment, the question which will then arise is what would become of a petitioner who has already fulfilled the requirements of section.”

40. In this court’s view whatever is the reason of the 2nd Petitioner to seek to withdraw from this Petition, the Respondents who incurred costs to defend themselves are entitled to costs which are associated with their defence against the 2nd Petitioner’s action. Accordingly the 1st to 4th Respondents are awarded costs payable by the 2nd Petitioner.

41. In the end the following are the orders of this court:-

(a) The 2nd Petitioner’s application dated 18th September 2017 is allowed as prayed with costs. To that end the 2nd Petitioner is permitted to withdraw himself from this Petition.

(b) The 1st to the 4th Respondents are awarded costs at Kshs.125,000 each which amount shall be paid from the amount paid into this court as deposit of security of costs.

(c) The affidavit of the 2nd Petitioner dated 18th September 2017 in support of the amended application of the 2nd Petitioner filed in court on 10th October 2017 is hereby struck out with no order as to costs for being unlawfully amended.

(d) The affidavits of Darwin Ronomuto Pombo, Danson Apaol Ngimor and Mamukong Simau all sworn on 10th October 2017 are hereby struck out with no order as to costs for having been commissioned contrary to section 4(1) of the Oaths and Statutory Declaration Act.

DATED and DELIVERED at NANYUKI this 9th day of NOVEMBER 2017

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: Njue / Mariastella

For 1st Petitioner: …………………………………………………….…………….

For 2nd Petitioner: …………………………………………………..…………….

For 1st and 4th Respondent: ………………………………………………….

For 2nd Respondent: …………………………………………………………….

For 3rd Respondent: ………………………………………………………….

COURT

Ruling read in open court.

MARY KASANGO

JUDGE