[2017] KEHC 2648 (KLR)
The court found that it would be unjust to require the petitioner to file a supplementary affidavit before receiving the 1st and 2nd respondents' replying and supplementary affidavits, as this could necessitate further responses and delay proceedings. The court also noted that the 3rd respondent's application was...
Source-derived case information.
- Citation
- [2017] KEHC 2648 (KLR)
- Parties
- Applicant: Seth Ambusini Panyako; Respondent: The Independent Electoral & Boundaries Commission; Respondent: The Returning Officer Kakamega County; Respondent: Cleophas Wakhungu Malala
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Election Petition 14 of 2017
- Procedural Posture
- Election Petition / Pre Trial Directions and Interlocutory Applications
- Outcome
- Application for extension of time granted; directions issued for filing and service of affidavits and submissions.
- Judges
- TW Cherere
- Legal Topics
- Pre Trial Procedure, Affidavit Filing Timelines, Extension of Time, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seth Ambusini Panyako
Applicant
The Independent Electoral & Boundaries Commission
Respondent
The Returning Officer Kakamega County
Respondent
Cleophas Wakhungu Malala
Respondent
Procedural Posture
Election Petition / Pre Trial Directions and Interlocutory Applications
Legal Issues
- 1 Whether the parties should be granted additional time to file and serve supplementary affidavits and responses to interlocutory applications in the election petition.
- 2 Whether the petitioner was justified in seeking time to respond to the 1st and 2nd respondents' affidavits and the 3rd respondent's application.
- 3 Whether the court should exercise its discretion under the Elections (Parliamentary and County Elections) Petition Rules, 2017 to extend timelines for filing responses.
Ratio Decidendi
The court found that it would be unjust to require the petitioner to file a supplementary affidavit before receiving the 1st and 2nd respondents' replying and supplementary affidavits, as this could necessitate further responses and delay proceedings. The court also noted that the 3rd respondent's application was served only two days prior, giving the petitioner insufficient time to respond. Exercising its discretion under rule 20 of the Elections (Parliamentary and County Elections) Petition Rules, 2017, the court held that extending the time for all parties to file and serve their respective affidavits and responses was necessary to ensure fairness and prevent injustice. The court...
Court Disposition
Application for extension of time granted; directions issued for filing and service of affidavits and submissions.
Orders
- The petitioner is granted 4 days from the date of the ruling to file and serve the supplementary affidavit to the petition and replying affidavits to the 3rd respondent's application dated 6.10.17.
- The 1st and 2nd respondents are granted 3 days from the date of the ruling to respond to the 3rd respondent's application dated 6.10.17.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE HIGH COURT OF KENYA AT KISUMU
KAKAMEGA ELECTION PETITION NO. 14 OF 2017
ELECTION FOR THE MEMBER OF SENATE KAKAMEGA COUNTY
BETWEEN
SETH AMBUSINI PANYAKO……….….….…………………………….……….PETITIONER
VERSUS
THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION…1ST RESPONDENT
THE RETURNING OFFICER KAKAMEGA COUNTY…….……………..2ND RESPONDENT
CLEOPHAS WAKHUNGU MALALA ………………………………..…3RD RESPONDENT
RULING
1. When this petition came up for pre-trial conferring on 6th October 2017, this court after hearing oral applications by the petitioner and respondents counsels and granted the following orders:
a. The Petitioner be and is hereby granted leave to file a supplementary affidavit to the petition
b. The 1st and 2nd respondents are hereby granted leave to file a response to the petitioner’s application dated 7. 9.17
c. The 1st and 2nd respondents be bad are hereby granted leave to file supplementary and replying affidavits to the petition
d. The 3rd respondent be and is hereby granted leave to file a notice of motion to quash certain affidavits in support of the petition.
e. Parties do file submissions to the application dated 7. 10. 17
f. Hearing of preliminary issues on 13. 10. 17
2. When the petition came up for hearing of preliminary issues this morning, it was brought to court’s attention that the 1st and 2nd respondents replying and supplementary affidavits and submission were file and served this morning. The 3rd respondent’s notice of motion to strike out affidavits in support of the petition was served on 10. 10. 17. The petitioner has not yet filed a supplementary affidavit to the petition
3. I have considered the rival submission by counsels. The 1st and 2nd respondents’ counsel argues that he was not able to get the deponents in time to swear the affidavits since they are engaged in the preparation of the forthcoming presidential elections. The 3rd respondent’s counsel argues that the petitioner’s supplementary affidavit was not dependent on the replying and supplementary affidavits of the 1st and 2nd respondents and maintains that he is ready to proceed although the application dated 6. 10. 17 was served 2 days ago. The petitioner’s advocate asks for time to file a response to the 1st and 2nd respondent’s replying and supplementary affidavits and to the 3rd respondent’s application dated 6. 10. 17.
4. The 1st and 2nd respondent’s replying and supplementary affidavits are in response to the petition. In my considered view, and on this I agree with the petitioner’s advocate, it would have been imprudent on the part of the petitioner to file a supplementary affidavit to the petition before receipt of the 1st and 2nd respondent’s replying and supplementary affidavits and then ask for more time to reply to any issues that may arise therefrom.
5. The 3rd respondent’s application dated 6. 10. 17 was served 4 days after filing and only 2 days ago and the petitioner has not had time to respond. Under the powers conferred on this court by the provisions of rule 20 of the Elections (Parliamentary and County Elections) Petition Rules, 2017, I find that it would be in the interest of justice for purposes of ensuring that no injustice is done to any party, to extend the time within which respective responses may be filed by the parties herein.
6. Consequently, it is hereby ordered:
i. The petitioner is granted 4 days from today’s date to file and serve the supplementary affidavit to the petition and replying affidavits to the 3rd respondent’s application dated 6. 10. 17
ii. The 1st and 2nd respondents will have 3 days from today’s date to respond to the3rd respondent’s application dated 6. 10. 17
iii. The 3rd respondent will have 3 days from date of service of response by the petitioner to file a further and/or supplementary affidavit as the case may be if need be
iv. The parties are at liberty to file and serve submissions to the applications dated 7. 9.17 and 6. 10. 17 before the hearing of the preliminary issues
v. Hearing of preliminary issues on 23. 10. 17
DATED AND DELIVERED THIS 13th DAY OFOctober, 2017
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant -
Petitioner -
1st and 2nd Respondent -
3rd respondent _