[2022] KEHC 18071 (KLR)

Tsuma v Katana & another (Election Petition E002 of 2022) [2022] KEHC 18071 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 18071 (KLR)

Republic of Kenya

In the High Court at Malindi

Election Petition E002 of 2022

J Ngaah, J

December 16, 2022

Between

Edward Saro Tsuma

Petitioner

and

Paul Kahindi Katana

1st Respondent

Independent Electoral and Boundaries Commission

2nd Respondent

Ruling

1. Two applications are before this Honourable Court for determination. The first application is the petitioner’s application for withdrawal of an election petition which he filed on 9 September 2022. The application is dated 6 October 2022 but it is not clear when it was filed because the e-portal from which I downloaded the application does not show when it was paid for. I will proceed on the assumption that the application was filed on 6 October 2022 which, as noted, is the date of the application.

2. The second application is the application to strike out the petition. It is filed by the 1st respondent and it is dated 7 October 2022. It was received at the registry on 14 October 2022.

3. Both applications were argued before me on 19 October 2022.

4. The grounds upon which the application for withdrawal of the petition is based have been expressed as follows: -(a)That the petitioner has been unable to raise the security amount as stipulated in law to be tendered to the court.(b)That further, the petitioner has been also unable to secure attendance of his witnesses occasioned by the threats to their property and lives and, therefore, unwilling and reluctant to in this matter”.

5. Edward Saro Tsuma, who is the petitioner, swore an affidavit in support of the application, basically reiterating these grounds. He has sworn further that no agreement or terms of any kind have been made or entered into, in relation to the withdrawal of the petition.

6. Both respondents opposed the application. The 1st respondent filed a replying affidavit sworn on 7 October, 2022. He maintains that he was duly elected as the Member of National Assembly for Kaloleni Constituency in the August 9, 2022 General Elections. He has also sworn that the petition was filed without the requisite declaration of the election results and, in any event, it was filed outside the 28-day limitation period. Again, the petition, though gazetted, was never served.

7. It is on these same grounds that the 1st respondent’s application to strike out the petition is based.

8. The 2nd respondent filed grounds of objection urging that because the petition is incompetent, it should be struck out rather than withdrawn. The 2nd respondent has also asked for costs.

9. Rule 21 of the Elections (Parliamentary of County Election) Petition Rules, 2017 provides for withdrawal of petitions. Under Rule 21(1), a petition may only be withdrawn with leave of the court. What this implies is that the election court is vested with the discretion to allow or not to allow the withdrawal of a petition.

10. Amongst the conditions an applicant for withdrawal of a petition must satisfy is that the application for withdrawal must be served to each respondent and, secondly, the petitioner must demonstrate that he has published in a newspaper of national circulation a notice of the motion to withdraw.

11. The applicant served the application and thereby discharged the first condition. As far as publication of the notice in the press is concerned, counsel urged from the bar that the advertisement was made in the Standard Newspaper of 13 November 2022. There is, however, no evidence on record that this was done.

12. Nonetheless, this is an infraction that could easily have been cured if the applicant was to file further affidavit demonstrating that indeed an advertisement had been placed in the Standard Newspaper as alleged. And if it had not been done, it would still be open to court to direct the applicant to comply with the relevant rule and file it. The point is, if a petitioner has, for one reason or the other, lost interest in pursuing his petition, and has chosen the path of withdrawing it, he cannot be compelled to prosecute it.

13. In any event, none of the respondents raised any issue as to whether the applicant had complied with this particular requirement. As a matter of fact, Mr. Binyinya, the learned counsel for the 1st respondent conceded that he had seen the advertisement by the applicant. I will, therefore take the learned counsel for the petitioner at her word that indeed the notice for withdrawal was made in a newspaper of national circulation as required under Rule 22(2) of the Election Rules.

14. I will therefore allow the application. The respondents will, however, have costs of the petition.

15. Having allowed the application for withdrawal of the petition, it follows that the application to strike out the same petition fails. It fails for only one reason: it was filed after the petitioner had already filed his application to withdraw the petition. If the application to strike out had been filed first in time, I would not have hesitated in granting it, particularly when it is as clear to the applicant as it is to the respondents that the petition is wanting in its most material respects.

16. The final question is the question on the amount payable to the respondents as costs. In her submissions, Ms. Katana, the learned counsel for the applicant counsel, cited two decisions from this Honourable Court in support of her proposal that each of the respondents should be awarded the sum of Kshs. 75,000/=. These decisions are Nanyuki High Court Election Petition No. 2 of 2017; Sammy Ndungu Waity v IEBC & 3 Others and Malindi High Court Election Peition No. 17 of 2017; Cosmas Kenga v IEBC & 3 Others. In each of these cases, the respondents were awarded the sum of Kshs 125,000/= as costs.

17. The respondents, on their part, asked for Kshs. 500,000/= each, as costs.

18. It is true that under Rule 30(1) (a) of the Elections (Parliamentary and County Elections) Rules, 2017, the election court may, at the conclusion of a petition, make an order specifying the amount of costs payable to any particular party. The other alternative is for the election court to order the registrar to tax the costs. This is provided for under rule 31 of the Elections Rules which states as follows:Taxation and Recovery of costs(1)A registrar shall tax the costs of a petition on the order of the court in the same manner as costs are taxed in civil proceedings in accordance with the Advocates Act (cap. 16).

19. In view of the contrasting figures floated by the parties as to the amount of the costs due to the respondents, I will not speculate and award any particular amount. I will opt for the latter alternative given by Rule 31(1) of the Elections Rules and direct the Deputy Registrar of this Honourable Court, sitting at Malindi, to tax the costs once the respondents have filed their bill of costs. The order on taxed costs, will of course, be subject to confirmation by this Honourable Court in accordance with Rule 31(2) of the Elections Rules. It is so ordered.

DATED, SIGNED AND DELIVERED ON 16 DECEMBER, 2022. NGAAH JAIRUSJUDGE